Court orders major overhaul of VA's mental health system
9th Circuit says treatment delays for PTSD and other disorders are so
'egregious' that they violate veterans' rights. Judges say they waited 'long
enough' for the VA to act and were compelled to intervene.
By Carol J. Williams, Los Angeles Times
Source:
http://www.orlandosentinel.com/health/la-me-0511-veterans-ptsd-20110511,0,2615613.story
May 11, 2011
A federal appeals court Tuesday lambasted the Department of Veterans Affairs for
failing to care for those suffering post-traumatic stress disorder and ordered a
major overhaul of the behemoth agency.
Treatment delays for PTSD and other combat-related mental illnesses are so
"egregious" that they violate veterans' constitutional rights and contribute to
the despair behind many of the 6,500 suicides among veterans each year, the U.S.
9th Circuit Court of Appeals said in its 2-1 ruling.
Noting that an average of 18 returning service members commit suicide each day,
the court directed a district judge in San Francisco to order sweeping reform of
the VA's mental healthcare system.
The appeals court took nearly two years to issue its decision, in part because
the court attempted to force the government to negotiate with the two veterans'
groups that sued over mental health care and benefits that had been delayed or
denied.
Citing the court's inability to order the government "to work faster," Chief
Judge Alex Kozinski had urged lawyers for the VA and the veterans groups to use
the court's mediation services to work out a plan for meeting the wounded
veterans' needs. The talks deadlocked and no settlement was reached.
"There comes a time when the political branches have so completely and
chronically failed to respect the People's constitutional rights that 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," said the ruling written by Judge Stephen Reinhardt and joined by Senior
Judge Procter Hug Jr., both appointees of President Carter.
"The VA's unchecked incompetence has gone on long enough; no more veterans
should be compelled to agonize or perish while the government fails to perform
its obligations," the ruling said.
Kozinski dissented, saying that "much as the VA's failure to meet the needs of
veterans with PTSD might shock and outrage us, we may not step in and boss it
around."
He predicted that the majority's directive would only prolong litigation and
complicate the agency's efforts to improve services.
"We would have preferred Congress or the President to have remedied the VA's
egregious problems without our intervention when evidence of the department's
harmful shortcomings and its failure to properly address the needs of our
veterans first came to light years ago," the majority said in heeding the chief
judge's concerns.
Veterans for Common Sense and Veterans United for Truth sued the VA four years
ago, alleging systemic failures in the government's processing of disability
claims and appeals of denied coverage. U.S. District Judge Samuel Conti denied
the groups' claims on procedural grounds following a seven-day trial in 2008.
The judge said he lacked the authority to order the VA to implement the Mental
Health Strategic Plan it drafted in 2004 to overhaul its care system within five
years.
Gordon Erspamer, the San Francisco attorney who represented the veterans groups
pro bono, said he provided Conti three years ago with remedial plans for the VA
to improve services to veterans, proposing firm deadlines for dealing with
treatment requests and benefit claims. He said he was concerned, though, that
the government would continue to appeal the case, further delaying the needed
reforms.
"We're not dealing with the rights of convicted criminals here, or the rights of
foreign combatants. We're dealing with our people, our veterans. It's a tough
issue to be so inflexible on," he said of the federal government's resistance to
direction from the courts.
Charles S. Miller, a spokesman for the Justice Department whose lawyers argued
the case in defense of the VA, said the department had no immediate comment
except to say that it was reviewing the 9th Circuit ruling.
Treatment of war wounds has been a legal guarantee to soldiers since Abraham
Lincoln was president, and the law was enhanced in 1998 to promise free care for
"any medical condition, even if the condition is not attributable to military
service."
Tuesday's ruling noted that there are 25 million veterans in the United States,
including 1.6 million who served in Iraq or Afghanistan over the past decade.
"PTSD is a leading mental health disorder diagnosis for those veterans," the
appeals panel said, citing a Rand Institute study in 2008 estimating that
300,000 returning war veterans currently suffer from PTSD or major depression.
The VA is obliged to provide a mental health assessment within 30 days for any
veteran requesting help, but many applications languish for months or years, and
tens of thousands of those deemed in need of care are relegated to waiting lists
because of chronic shortages, the judges noted.
The ruling also cited a 2007 report by the Office of the Inspector General that
there were no suicide prevention officers at any of the VA's 800 community-based
outpatient clinics, where most veterans receive their medical care.
carol.williams@latimes.com