Monday, July 7, 2008

Legislative Update from Lee F. Kichen, LTC, U.S. Army (Ret.) - July 2008


Federal Legislative Update

GI Bill for the 21 Century is a Done Deal- On June 30, President George W. Bush signed the Wartime Supplemental Funding bill which contained the GI Bill language for which the Veterans of Foreign Wars championed for nearly ten years. This bill represents the most significant improvement in veterans’ education benefits since World War II. Below is a recap of the provisions of this bill.

Basic Benefit: Initial average of $1,450 a month, actual payments will cover full tuition and fees up to the cost of the highest in-state tuition for a four year public college or university in each state. Basic benefit will be indexed to increase in tuition costs.

Veterans will receive a monthly payment equal to the local Basic Allowance for Housing for an E-5 with dependents. Currently BAH for an E-5 averages about $1,100 per month.

Books and Equipment: Each full time veteran-student will receive up to $1,000 annually.

Veterans needing special tutoring will receive $100 monthly, with a maximum total payment of $1,200.

There is a one time payment of up $2,000 for this purpose.

Longer Delimiting Time: Increases the time veterans have to use this benefit to 15 years after separation from the current 10 years

Transferability: Service members with six years of service who extend their obligation for four more years can transfer full benefits to spouses. Members who serve 10 or more years can transfer benefits to children

Abolishes Enrollment Fee: The $1,200 member contribution required by the old Montgomery GI Bill is part of this new package:

The Department of Florida, Veterans of Foreign Wars congratulates those Floridians in the Congress who supported this incredibly important bill. We strongly urge that you send a short note to Senators Bill Nelson (D-FL) and Mel Martinez (R-FL) for supporting this bill. Additionally, Representatives Gus Bilirakis (R-FL9) Corrine Brown (D-FL3), Ginny Brown-Waite (R-FL5), Vern Buchanan (R-FL13), Kathy Castor (R-11), Ander Crenshaw (R-FL4), Lincoln Diaz-Balart (R-FL21), Mario Diaz (R-FL25), Tom Feeney (R-FL24), Alcee Hastings (D-FL23), Ric Keller (R-FL8), Ron Klein (D-FL22), Ileana Ros-Lehtinen, (R-FL18), Tim Mahoney (D-FL16), John Mica (R-FL7), Jeff Miller (R-FL1), Cliff Stearns (R-FL6), Debbie Wasserman-Schultz (D-FL20), Robert Wexler (D-FL19), and C.W. Bill Young (R-FL10) were cosponsors of one or the other or in some cases both of the two House of Representatives versions of this bill. Unfortunately, Representatives F. Alan Boyd (D-FL2), Connie Mack (R-FL14), Kendrick Meek (D-FL17). Adam Putman (R-FL12), and Dave Weldon (R-15) failed to cosponsor either of the two House bills.

Senate Moves Vet Bills: The Senate Veterans Affairs committee marked up several veterans' bills before the 4th of July recess. Among the bills discussed were the annual cost-of-living adjustment and two large health and benefit-related bills that would improve options for veterans and their families. Among the provisions in the benefits bill is language that would change the definition of "engaged in combat with the enemy" to all people who receive combat pay for purposes relating to VA compensation. It would also allow for new and better home loan refinancing options and a temporary increase in the maximum loan guaranty amount for veterans. The Committee also moved VFW-supported legislation that would expand and improve upon the health care services provided to women veterans. The bill would put special emphasis on providing mental health coverage, and requires several studies and assessments as to VA's capacity for care for women veterans and their future needs. For more about the bills, visit the Senate VA Committee website at: of Defense Veterans Affairs Fail to Implement Law Change Designed to Help Disabled Veterans - The Congress in the FY 2008 National Defense Authorization Act included language in Section 1646 of that bill ending the requirement of service members injured in combat or performing tasks relating to combat such as training from having to repay any military disability severance pay before becoming eligible for disability compensation pay from VA. In a moment of absolute arrogance David S.C. Chu, Under Secretary of Defense for Personnel and Readiness sent a memo to the military departments instructing only those injured in a combat zone or as direct result of armed conflict as being exempt from the repayment of severance pay. The Chu memorandum removes the hazardous service, conditions simulating war and instrumentality of war clauses for the definition of “combat relatedness” Ironically, section E3.P5.1.2 of Defense Department Instruction 1332.28 includes actual combat as well as hazardous service, conditions simulating war and instrumentality of war in its definition of “combat relatedness”. It is this same document DoD uses to determine whether or not a military retiree is eligible for Combat Related Special Compensation. Our contention is that a disabling injury incurred during training, hazardous duty, or the result of instrumentality of war has no less of an economic or quality of life impact then one resulting from combat with the enemy.

DoD Does Comply with Other FY 09 National Defense Authorization Act Mandate- In a classic example of selective compliance with Congressional mandates, the Pentagon will conduct a Congressionally mandated review of disability ratings. Service members given a disability rating of 20 percent or lower during their medical evaluation boards since Sept. 11, 2001, may have their cases reviewed by a new Defense Department board.

The Physical Disability Board of Review was a creation of the 2008 National Defense Authorization Act after a number of studies revealed between differences in the average amounts of disability benefits awarded. For example, in a study conducted by the Military Times an enlisted airmen averaged much higher monthly disability payments — $926 — than did enlisted Marines at $770 a month. And all the services tended to award more officers than enlisted personnel ratings of 50 percent or higher.

“The purpose of the [board] shall be to reassess the accuracy and fairness of the combined disability ratings assigned service members who were discharged as unfit for continued military service,” wrote David S.C. Chu, undersecretary for personnel and readiness, in a memo dated June 27. “The [board] shall operate in a spirit of transparency and accountability, and shall impartially readjudicate cases upon which review is requested or undertaken on its own motion.” Evidently, the Undersecretary insists on “transferability and accountability” when it is convenient while it still disregards the Congressional mandate to end the policy or recouping military disability severance pay before a veteran can receive VA compensation.

The new policy is effective immediately. According to the 2008 authorization act, the board was supposed to be set up by the end of April. It is shameful that the machinery to implement this policy is not yet in place. It was clear from the work of the House and Senate Armed Services Committees, last year, that DoD would be mandated to undertake these reviews.

We are very concerned the Undersecretary’s directive will limit the scope of these reviews. “Only the medical condition(s) determined to be specifically unfitting for continued military service, as previously determined by the Military Department [physical evaluation board], will be subject to review by the [board].”

According to an Army Times article, “Retired Army Lt. Col. Mike Parker, who has worked as an advocate for service members going through the physical evaluation board process, said that in the past, a person might have been looked at for three conditions. For example, the first condition, perhaps asthma, might be an unfitting condition that would rate at 10 percent for retirement purposes. The second, perhaps for sleep apnea, might be unfitting but rated at zero percent. The third, perhaps diabetes, could be found to be unfitting but pre-existing, so the service member would not be eligible for benefits. That last condition might be the one the service member was discharged for, even though the regulations state service members should be rated for all unfitting conditions. Parker said that’s exactly the kind of unfair treatment the new board was intended to correct.”

‘They’ve been cherry-picking which unfitting condition to use,’ Parker said. According to Chu’s directive, the board may still only look at that one condition rather than the three that should have been rated in the first place, Parker said. ‘In some cases, an injury, such as the thousands of traumatic brain injuries that went undiagnosed in the first few years of the war in Iraq, may not have been properly diagnosed in time to be included in a medical retirement board.’” According to the Army Times, the Air Force will serve as executive agent for this and will nominate someone to lead the program as well as set up guidance as to how it will be run. We would urge that the Air Force select recently retired Officers and Noncommissioned Officers from all military departments to sit on these boards. We believe that retired Officers and NCOs would not be subject to undue command influence and work in the best interest of those whose cases they were reviewing.

Any former service member who was not found eligible for medical retirement, including lifetime medical benefits, but who was still separated from the military may have his or her case reviewed. However, after they receive a recommendation from the new review board, service members will not be eligible for review by the Board for the Correction of Military Records, according to the Defense Department. Service members will have to sign a statement saying they understand they lose that right. We are concerned by the provision denying further review by the Board of Corrections Military Records if service member chooses review by the Physical Disability Board of Review. Historically, the Board of Corrections has impartially and compassionately served to balance the interests of the service member and the military departments.

“The [Physical Disability Board of Review] has no greater obligation to our wounded, ill and injured service members and former service members than to offer fair and equitable recommendations pertaining to the assignment of disability ratings,” Chu said in a Defense Department release. We hope that Dr. Chu will also consider that Defense Department, when considering who should be exempt from repaying disability severance pay to receive VA disability compensation, will act fairly and equitably and ensure all ill and injured former service members retain both severance pay and disability compensation.

Republicans, Democrats, the Congress and the President Blow Off Medicare Recipients and TRICARE Participants-The Honorables had at least six months to work out a relatively simple deal to prevent a 10.6% cut in Medicare payments from taking effect on July 1 and to prevent cutting off Medicare coverage for hundreds of thousands of Medicare-eligible speech and physical therapy patients on that date.

The usual political bickering and intransigence prevented a fix before Congress took a week's vacation over Independence Day and promised to fix things when last week, the House of Representatives overwhelmingly passed a fix (H.R. 6331) that would have stopped the payment cuts, substituted a small increase for doctors seeing Medicare and TRICARE patients, and prevented the therapy cutoff. The vote was a veto-proof 355-59.

But Senate Republicans and President Bush didn't approve of the funding source for that fix (cutbacks in some Medicare Advantage programs that pay doctors up to 17% more than regular Medicare does), and pushed an alternative bill. After the overwhelming House vote, Senate leaders tried to bring the bill up for a vote anyway. But when Republicans objected, they needed 60 votes to overcome the objection. They got 59. Not enough to even get a vote, let alone override a threatened presidential veto.

This isn't the first time Congress has failed to stop a Medicare payment cut. In 2006, Congress missed the deadline, but approved a fix within a few weeks and made it retroactive. That caused doctors and Medicare administrators lots of headaches in the interim, but in the end, the lost payments were made up. And TRICARE patients were never affected, because Congress fixed the rates before TRICARE got around to implementing the cuts. That's the best-case scenario now - if Congress can act quickly after July 4 to approve a fix the president will sign. But the risk remains that some number of fed-up doctors will decide not to accept any more Medicare or TRICARE patients.

In this instance the Pentagon has acted responsibly. Shortly after the Senate vote, OSD has announced that TRICARE claims will continue to be processed under pre-July rates at least through the end of the summer. The law gives TRICARE the flexibility to do that. The Pentagon's assumption is that Congress will act reasonably shortly to reverse the cut, so there's no sense processing rate changes now if they're going to be reversed soon. Unfortunately, Medicare doesn't have quite that much flexibility, but has announced that Medicare claims for service since July 1 will be held until July 15, giving Congress eight days to act once they return to work on July 7. Whatever Congress does after the recess it could have done before July 1 and prevented this train wreck. If the President, the House, the Senate, Republicans, and Democrats had been willing to compromise -- just a little -- health care access for our seniors and military beneficiaries need not have been put at risk in this irresponsible way.


State Legislative Update

Veterans of Foreign Wars Adopts State Legislative Priorities for FY 2009-The 2008-09 Department Council of Administration met for the first time immediately after this year’s convention in Orlando on June 22 and adopted, on a voice vote, the following legislative priorities.

1. Legislation providing for the sale of Veterans Service Organization (VSO) distinctive license plates with the proceeds of sales being divided between the Florida Department of Veterans Affairs and the VSO.

2. Legislation granting equal treatment for wartime veterans in the state retirement system.

3. Legislation establishing a cash bonus for veterans who entered active duty from the State of Florida and received the Global War on Terrorism Expeditionary Service Medal, Iraqi Campaign Medal or the Afghanistan Campaign Medal.

4. Legislation establishing tuition exemptions for veterans enrolled in Florida public institutions of higher learning who entered active duty from the State of Florida and received the Global War on Terrorism Expeditionary Service Medal, Iraqi Campaign Medal or the Afghanistan Campaign Medal.

5. Legislation calling for a Constitutional Amendment granting a 100% Ad Valorem tax exemption for service members deployed and participating in operations in support of the Global War on Terrorism.

6. Legislation requiring the Department of Education to repay student loans outstanding after a waiver has been granted to a combat veteran if the loan was certified by a postsecondary institution and awarded before receipt of a combat qualifying badge or ribbon, e.g. Army Combat Infantryman Badge, Army Combat Medic Badge, Army Combat Action Badge Navy/Marine Corps Combat Action Ribbon and the Air Force Combat Action Medal.

7. Legislation granting Congressionally Chartered veterans service organizations an exemption from the Department of Agriculture administrative solicitation fees.

Recommended Priorities County, Municipal and School District Legislative Priority

Local ordinances establishing preferences for disabled veteran owned businesses bidding on county, municipal and school district contracts.

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