Will veterans have to buy health insurance under the Affordable Care Act (ACA) in January 2014?

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There are many uncertainties with the ACA however the answer appears to be NO, eligible veterans (as individuals) can opt VHA without a tax penalty.  However, family members must be enrolled in a government or private health insurance plan.  Why? The VA health care meets “minimum essential health care” under ACA rules even though it’s a benefit, not insurance per se. 

 In the video hearing below, Ch. Miller makes many important points.  Like the hearing participants, I’m left unenlightened however I recommend viewing it if you have the time.  For example, dual enrollment which many veterans now enjoy is a problem (but it’s not clear why).

April 24, 2013

USHR14 Committee on Veterans’ Affairs

Note:  The video does not begin until about the 40-minute mark timeline.  Click on video timeline until you find the beginning.

Topic: Implementation of the Affordable Care Act in VA

http://www.ustream.tv/recorded/31898351

My notes:

  • VA:  The law has to be implemented before the actual effect on VA’s health care is known.
  • About 9 million veterans are enrolled in VHA.
  • Health choices:  About 66,000 new veterans are expected to enter the VHA and are included in the budget.   Some veterans will leave the VHA if they want to use the Premium Tax Credit to buy private insurance in the exchanges.
  • Huh? “1 million in/1 million out?”  No one knows due to the various choices veterans will make in 2014.
  • An estimated 1.3 million veterans are uninsured and but eligible to enroll in VHA.
  • Females in households often make health insurance decisions.
  • The miserly states (21 currently) that do not increase Medicaid are expected to effect veterans.  Stingy Florida and Texas veterans will be impacted.
  • The Dept. of Treasury will allow veterans (and eligible civilians) to choose between market insurance or enroll in VA coverage.  Veterans can stay in VHA and uncovered family members must enroll in other types of insurance.
  • Confusion reigns over the tax credit: VHA enrollees will not get the premium tax credit but family members in private care may/will (?) get the premium tax credit if income is 100%-400% of Federal Poverty Guidelines.
  • Mr. Roe–Believes that many more than 66K new veterans will enroll (1:18).
  • Dual enrollments–VA can currently bill private insurance.  If veterans drop private insurance, VA will be impacted moderately.
  • Chairman Mr. Miller: “I’m lost” (re: premium tax credit) at 1:23.
  • Will IT be in place between VA and IRS by Oct. 2013? Lots of wishful thinking expressed.
  • VA says that ACA outreach/communications to veterans will roll out in May and June.  Hmmm–We haven’t seen any outreach in MN yet.
  • (1:33) “That’s a problem.” Discussion: The tax credit is a percentage of family income and family size and based on Federal Poverty Line.  What happens to the credit when dependents has separate coverage from veteran.
  • Will rural VA clinics be overwhelmed?
  • Veterans will have to weigh the value of the tax credit versus the VHA services they receive.
  • (2:00) One Congressman thinks the assumption to think that veterans will prefer over Medicaid over VA is “ridiculous”; he thinks that the 8 million of veterans with other insurance now should be considered and planned for.  (Medicaid is crappy in some states.)
  • Service-connected veterans will have more incentive to enroll/stay enrolled in VHA because of no co-pays.  Priority 8 veterans will have to weigh expected co-pays versus exchange co-pays/deductibles.  Accessibility is also an issue.
  • Mr. Miller:  VA’s reliance on public service announcements is outdated.
  • Priority 8 vets (called category 8 like a hurricane by Ch. Miller)–say what?

Will there be a flood of new veteran patients into VHA?  How can anyone decide without understanding anything about tax credit, understanding what private insurance products will cost, or whether employer insurance will be dropped, when none of this information is available yet?

But one thing is clear, uninsured veterans should get enrolled to avoid a potential tax penalty.  Dependents should also enroll in a health plan. There are numerous exceptions to avoid the penalty but the IRS road is going to be bumpy for a while.

Final hearing thoughts from a astute Congressman, Mr. Roe (M.D.-TN):  “…we don’t fully understand what we’re talking about…”

Icon with question mark by purzen - An icon with a question mark.

HELP

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LAY TESTIMONY AS VIABLE EVIDENCE

Gynecologist or gastroenterologist? Who's doing your IMO

Gynecologist or gastroenterologist?
Who’s doing your IMO?

Recently, when I was backed up with my CAVC claim in March, I received this article and it is an absolute “must read” for do it yourselfer (pro se) claimants. By the same token, budding VA law dogs who browse here would be wise to take a refresher on this important element. This is the upgrade patch from Caluza/Shedden to Hickson in terms of what it adds to the conversation.

Most importantly, this stresses what I try to emphasize in my book– i.e. credibility is a item granted to us at the inception of our claim like a birthday suit. Everybody gets one. How you accessorize it as you progress is paramount to the success of your claim.  If you offer lay testimony (sworn or affirmed by oath) that is in conflict with the record, your prior lay testimony, or is inherently incredible like alien abduction, your credibility is gone. Anything issuing from your mouth henceforth is akin to the boy crying Wolf for the umpteeth time. You don’t want that.

The three gals who wrote this are VA attorneys who work for the Board of Veterans Appeals (BVA) and are the same staff lawyers who act as the prosecutor defending the VA’s interests when you appeal. Keep that at the mental forefront while you read it. As such, this vignette is artfully constructed to maintain a façade of respectability. It appears above board and a reasoned discussion on its face. I feel it loses its objectivity when the discussion segues into the VA examiner as actually possessing an open, unbiased mind. As I so often intone, VA examiners/adjudicators et al are a tight bunch that tend to have the military view of you being guilty until proven innocent. This is a precept I am adamant about. I have enough experience after 23 years in receiving mode to make that unbiased assessment.

The article is extremely useful inasmuch as  for citations to older CAVC and Fed. Circuit decisions you can use to point the way in your circumstances. Be careful as the history includes the progression of the law and some decisions have been superseded in terms of precedence as well.

The conclusion artfully illustrates the conundrum of investing the VA examiner (as a medical decision-maker) with legal powers (like the adjudicator) to try to separate the wheat from the chaff. This, ostensibly, is the job of the RVSR/DRO/adjudicator. Obviously, there will always be a contretemps between the two as to whose determination of service connection is the most probative and why. As it stands now, the adjudicator wears the pants and has the power to eviscerate the VA examiner’s opinion or ignore it completely. If that adjudicator feels it is so flawed as to be useless or speculative, he/she does have the power to ask for another (given permission from on high). Few do. More often, the flawed decision proceeds to the BVA and has to be remanded for a meaningful IMO.  This is another reason why we see so many remands come back from higher tribunals. Shoddy investigative work, coupled with unfamiliarity with the disease/injury etiology, currently seems to be par for the course. Where HCV cases are concerned, its endemic. Virtually all are punted to the BVA  due to ignorance of the prolonged presentation of the disease process (thirty plus years).

Now, jack this mentality up on “Provisional” steroids and a “decide now at all costs” mentality will promote nothing more than more of the same-albeit in a greater volume. Cautiousness under pressure that errs on the side of denial to cover one’s own ass (and job) is to be expected. Remember I love Lucy and the donut factory? When it was (wrongly) determined that she could handle the volume on the conveyor belt, they jacked up the speed/quantity and created even more problems.

Veterans are impatient for several reasons. This has been brewing for over 75 years. As for going paperless, the VHA managed it with no apparent loss of patient care at the time. I don’t think that can be said now but the predicate is wholly different (too many in the system with too few doctors to serve them). It would be redundant to plow old ground on this subject, but until VA develops a more nuanced program for claims development that is more inclusive of lay evidence and testimony, whether it is able to be corroborated or not, their accuracy numbers will continue to be in the low forties regardless of what they publish.

As more than one pundit has pointed out, merely denying and transhipping  the backlog to the BVA will be unavailing soon. Allyson “in Wonderland” Hickey will simply be drafted again up to Capitol Hill testifying about how they are preparing to “fix” the interminable backlog at the Central Office. Why, I dare say the word “Provisional ” may even be employed. Veterans are not enamored of the idea of being provisioned. We’ve had that experience in the military and are acquainted with the concept. We want durable justice in a timely manner much as an “alleged perpetrator” want a speedy trial. Since the legal concept of Habeas Corpus is not available to us, we ask for the next best panacea- a timely, honest adjudication.

VA casts this in the light of a criminal investigation with many nuanced steps. Documents must be summoned from St. Louis. Character of military service must be ascertained. Intercurrent medical evidence must be examined. Et cetera ad nauseum. Lost in this shuffle is the unmentioned (and illegal) attempts to sniff out any evidence that might be damaging to the Vet’s claim. VA insists this is necessary to protect the system. Seems like a perfectly reasonable scenario until you get down in the weeds and read the majority of the denials. Plagiarism of wording denial from one claim to the next is rampant. In fact, where Hepatitis C cases are involved, character assassination is de rigeur. The library of denial reasons is extremely redundant and the recurring reason is willful misconduct via drugs.

I spent two years in several countries in the SEA theatre of operations. In not one, did I see willful drug misconduct excluding smoking left-handed tobacco. No cocaine, no heroin, no pill-popping or other UCMJ violations. Perhaps the Air Force didn’t suffer that problem but I doubt it can be indigenous to only one or two services. Nevertheless, we see an astounding 85 percent denial rate for HCV- many based on the tarnished premise of drug abuse. Sometimes this is implied by a staycation at the Graybar hotel. Somehow, the mere presence at a detention facility taints one with the HCV sobriquet. Likewise, smoking Mother Nature’s signature herb also tars and feathers Vets. Far away the most common is the “admission” by the selfsame Vet at some point after service that he engaged in this behavior. This is dutifully transcribed by VA workerbees at the VAMC into your records. Think about that in the context of Leshore v. Brown, 8 Vet. Appeals 406 (1995):

   “a bare transcription of lay history is not transformed into ‘competent medical evidence’ merely because the transcriber happens to be a medical professional.”

I have assisted many Vets in the preparation of their claims and this one facet rears its ugly head again and again. Most deny ever saying anything of the sort. To test the theory, I mentioned during an intake (blood pressure/pulse/ breathalyzer) at a scheduled VA appointment that I was depressed when asked.

VA Nurse assistant: ” Have you been depressed lately?

Me: “Yes.”

VA: “And this was about…?”

Me: “My lettuce. It’s not growing very well in the coldframe. It’s too cold. I guess you could call it lettuce depression.”

VA: “And have you had any thoughts about hurting yourself or others?”

Me: Yeah. “I’m thinking about ripping it out and starting over in the greenhouse. Gosh. I was positive it could make it in the coldframe. All that work for nothing. You can see how that would be depressing, huh?”

VA: “Ummm. Do you have any guns in your home?”

Me: “No sireee, Bob.” She didn’t specify whether she was talking about toy or rubber band guns nor did I ask her to elaborate.

Sure enough, I’m clinically depressed now according to VA. It’s right there in the records. I’m not a psychiatrist but I have successfully diagnosed myself in VA’s eyes. I bear watching for fear I may harm my lettuce.

 One on one with your lettuce

One on one with your lettuce

This may explain the plethora of denials in one vein but doesn’t begin to explain the dichotomy of the identical 85% denial rate for bad backs tens years after being in the 173rd Airborne. Unless, and until the VA is prepared to trust us to be honest and truthful in our testimony without summarily denigrating it as worthless, we will be condemned to a rigged judicial system that gives us short shrift. That facet of the equation is never discussed in this tome.

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STOLEN VALOR ACT RESURRECTED

This just in. President Obama just signed the bill.

Tim Poe will have to watch what he says and wears.

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Did I show you my Purple Star yet?

 

 

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PROOF OF PEROXIDE POISONING

 Member Mark of the club sends us this one. 

ATT00001

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VA’S “HOPED FOR” PLAN

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I often noticed during the Vietnam Misunderstanding that all the bigwigs would get together down at 7th AF HQ at Tan Son Nhut Airpatch and collaborate on a “new” or improved plan to win the war. This happened so frequently that they were always coming or going. If they weren’t at 7th AF , they were over at Westmoreland’s hacienda or MACV HQ. The plan du jour changed more frequently than a baby’s diaper.

One thing perennially  bandied about was “Strategic” plans. All the planning in the world was just a response to a new trend. Everything thus became a reaction to an action on the NVA or VC’s part. Much as a bullet ricochets wildly and with no apparent trajectory, so too did the REMFs react to the latest perceived “trend”. If bombing them into the stone age wasn’t working, the honchos would suddenly concentrate on infrastructure like bridges or the Ho Chi Minh trail at the extreme westernmost terminus of the DMZ (Laos). If that didn’t seem to get their attention, Agent Orange spraying was stepped up. If killing the rice didn’t work, massive amounts of CBUs were employed with time delays like the famous CBU-26/49s. They’re still picking them up as I write this and the maiming and amputations forty years later are testimony to the failure. Laotians call them bombis. I’m sure the Cambodians have a word that conveys the same thing.

Similarly, we see the same strategic planning being employed by the Veterans Benefits Administration. If I didn’t know any better, I’d assume they transplanted Gen. Momyer and the the 7th AF wise men lock stock and barrel over to 810 Vermin Ave. NW and gave them carte blanche to weave their magic. There, in an eerily similar pattern, they are cranking out flow charts, expected benefits delivery schedules, Regional Office availability and accuracy numbers, projected launch dates, expected compliance dates, and expected data  confirmation dates that will prove each and every facet of this strategic “re”-organization.

I  remember well the time McNamara forecast the NVA’s downfall. Like any true Detroit Car manufacturer CEO, he had it down to a date-give or take six months. In a more perfect world of car bumper production, engine availability and a guaranteed supply source, he would have provided a concrete date for any vehicle’s availability. In war, the only given is that it will take longer than anyone ever dreamed of. Hence, when they ran out of MK-82 500 lb. dumb bombs in 1967 and the war was just warming up, there was some heated controversy. We were forced to go out and pay $900 each for all the MK-82s we’d sold Germany at $58 each back in the early fifties.  Munitions factories who were told to hold off on ramping up 5.56mm X 45mm M 16 ammo production were suddenly exhorted to go into full blown production as soon as humanly possible. Sound familiar?

The Veterans Administration is taking the same tack. The orchestration for the current disaster appears as though it was lifted page for page from the Vietnam debacle. Fiddling confidently while Rome burned, VA watched as we ratcheted up our war plans in 2001 hard on the heels of the Kuwait/Iraq imbroglio. No plans were formulated to even consider an electronic records conversion in spite of the fact that VA was the lone government holdout in this respect. In splendid isolation, VA continued to do business much as their forebears did in the eighteenth century. They did graduate from quill and inkpot to more modern writing utensils.

Even when it became evident that change was needed, the good Dr. Peake, appointed by W43 made few, if any, changes that would prepare the Veterans Administration for the tsunami of future claims. As an aside, you simply cannot put hundreds of thousands of troops under arms and not have a corresponding increase in collateral damage. With improvements to medical science, the number who survived what would be considered fatal injuries in the past, now were arriving at the Landstuhl Humpty Dumpty Clinic and getting a second chance-albeit somewhat abbreviated or physically truncated.

VA continued to bone up on their musical talents at the expense of Veterans until it could be ignored no more. Now we are witnessing the Helter Skelter technology VA has inaugurated in the second decade of the twenty first century. VA has just released their new Strategic Plan to Eliminate the Compensation Claims Backlog and are very proud of it. Every contingency has been accounted for. Every wrinkle has been smoothed. Like a seamstress before opening night on Broadway, they stand with iron, thread and needle in hand waiting for a wardrobe malfunction. And well they should.

Imagine dial up computer log-on in the nineties. Remember getting booted off unceremoniously for no reason? How about watching the little hourglass or circle go round and round? Et voilà! Welcome to VBMS. Try viewing a C-file when you finally get it back from the vendor who scanned it preparatory to your adjudicating it. Better yet, try viewing it with five tabs opened to different parts of it. Can you say VBMS crash? Sure. I bet you can. Go ahead and try sounding it out.

rogers

VSRs who I speak with (who surreptitiously contact me via the AFGEwebsite) tell of horrendous delays and server issues the likes of which we used to suffer decades ago in our dial up days. Frustration is so rampant that many just pay lip service to this mode and sashay electronically over to the copier to construct an illicit paper version in order to decipher it all.

Much like the fabled air war described above, simply stating that dropping 12 (or 18, or 28) VAROs into the VBMS mode will strategically change claims adjudications as we know it is akin to smoking some really good Maui Wowie followed by strapping on the rose-tinted sunglasses. Nothing changed but it looks better.

Meaningful change at the VA is coming. Make no mistake. It is long overdue and trying to rush a new product onto the market is fraught with unforeseen glitches. Ask Boeing about their new 787 batteries. Similarly, simply pronouncing that henceforth the wicked witch is dead comes with some codicils. There are 58 witches- some of which live in towns with lots of Veterans. Were we faced with converting just Fort Harrison and Sioux Falls over to VBMS, this would have been a cakewalk. Reality is a harsh taskmaster. When your planning committee has no depth like San Diego’s backfield, you need to bring in the pros from 3M and Microsoft. VA is loathe to do this. They are an “in house” club as most in the government are. They hate to delegate authority and prefer to use their own geek squad. The mentality is simple. “We have a complex system here that requires a ‘hands on’ proactive approach. No one else has the depth and finesse to accomplish this.” Therein lies the dilemma. VA feels there’s always something on the shelf to fill the bill.

Finally faced with the impossibility of scanning katrillions of pieces of paper into meaningful electronic records, they ordered out like a chinese takeout. No strictures were employed. No parameters were announced. Simply a “Take them out. Be careful and don’t lose them like we do. Scan them and bring them back. Order? We don’t care what order they’re in.”

Phase Two began an orderly scanning so they were more organized by left side, center side and right side. Phase Three was even more specific by asking for the grouping of STRS and medical evidence in a specific spot without a concerted effort to hunt all day for them. At some point I suspect a note might have appeared in the suggestion box proposing a table of contents. I might be premature on that one. My AFGE confidante isn’t sure they’ll implement it soon without additional Aspire training back in Baltimore.

While I compliment VA for their concerted and belated effort to come to grips with this problem, no one can say it was a surprise. They have been in this business for several centuries and I’d think they would absorb some of the more nascent technology as it became available. Better late than never? Yes, but by the same token, when given this golden opportunity to seize the high ground, it seems incongruous to take the least savvy path to excellence. Considering the vast quantities of money they have thrown at this and the relatively paltry returns, one might expect some serious introspection. Not the VA. Their solution? Hey, let’s go down to Orlando and have a conference and learnathon complete with VBMS karaoke. Hire a Patton lookalike for $80 K. Teach claims adjudication on the golf course.

There have been some who clammer for Shinseki’s head and Hickey’s as well. Idiot’s delight. Just when they are starting to comprehend the magnitude of the problem and come up with viable solutions, the headhunters show up and demand blood. The problem is myopia and it began aeons ago. We finally fitted them out with glasses and they can see the problem. It would be asinine now to fire the ones best equipped to solve the dilemma. It would certainly feel good but that would be followed by more confusion and a new strategic outline on how to cure the problem.

Let’s face it. We’ve been strategized to death by the bean counters. In construction, at this stage, one often hears the refrain “It’s time to shoot the engineers and begin production.” VA blithely passed that milestone in 1946.  They have continued to ignore the obvious, impending signs and fiddled enough to compose innumerable concertos. The intermediate deadwood at the Central Office that dreams up all this foolishness and attempts to keep it in house has to go. It’s hard to think outside the box when the definition of “box” has so many people defining it. Put another way, I suspect we have too many chiefs and not enough Indians. Ooops. Indigenous Native Americans predisposed to living on the North American continent.

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STARDUST RADIO IN ONE HOUR +20

 

 

stardust radioYessiree. The Hugfest warmup show and everything you ever wanted to know about VA in 3,000 words or less. 1600 hrs for the Left Coast and 1900 for all you in Storm Country east of the Mississippi. Isn’t it nice that Bobbi Gentry put that to music? Now, if someone would do it to Tennessee. Word check is the only thing that saves me on that one.

 

LIVE call in line … 877 213 4329

Call us. Tell Rick how much salsa to bring and how hot it should be. Call and ask if you can demand VA rate you under a different diagnostic code than you got saddled with at your initial win. Call if you voted for Ross Perot. The third caller gets a free autographed ASK NOD BOOK. See? Rank capitalism is still alive.

imagesM-I-Double S -I-Double S-I-Double P-I

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#39 JUST SIGNALED HIS SUCCESS.

A gentleman named Darryl just left a note on the Dr. Cecil’ website widget. After seven years, he’s finally prevailed…

thank god for hcv-vet/nod/dr. cecil/dr. ahmed after seven years I won my hcv case, it would never have happen without the assistance from this website. and the faith, one must have the faith.

Darryl hit that one out of the park. Win or die and faith that you will ultimately prevail is the cement that holds our claims philosophy together. A round of applause is way overdue for this gentleman. Seven years in the hole is a long time to wait. I sent him a private message and asked him to contribute his winning technique for closer inspection. I hope he will respond and share his story with us.

Each and every one of you have unique circumstances and no two are ever alike in their prosecution. Keep in mind, too, that many a VA lawyer comes here searching for that Holy Grail- the unique piece of the puzzle that unlocks the win. By sharing this with us, he will put one more nail in the VA coffin that prevents us from attaining what is rightfully ours and promised us when we signed on the line.

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50 YEARS AGO

Fifty years ago or thereabouts, a lot who read these words were asked what they could do for their country rather than the obverse. I now wish to restate that. I think everyone misheard it and disremember it.

JFK1

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VA FAILING TO TREAT HCV VETS

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Patricia sent me this and it should be required reading for any one of you who served between 1959 and 1989. Hell, even if you got poked with a jetgun up to 1998 when they pulled them, you’re in danger.

http://hcvets.com/Journals/VAfailsTreatingVets.htm#Read_

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8 DAYS TO HUGFEST

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