Feds say VA law unenforceable

Two years ago, in response to a Department of Veterans Affairs health care scandal that seemed to offer up a new and disgusting revelation every day, Congress passed, and President Obama signed, something dubbed the Veterans Choice Act.

The law provided, among other things, that veterans forced to wait absurdly, and in too many cases dangerously, long times for medical care would have greater options of obtaining that care from private providers. More to the point of the immediate issue, it gave the VA greater authority to quickly and summarily dismiss workers, including senior staffers, for the kinds of negligence, administrative malfeasance and records-doctoring that had been uncovered within the department’s medical bureaucracy.

The scope of the scandal was undeniable, the need for reform unarguable, the sincerity of public outrage unquestionable. Veterans were kept waiting for treatment for up to a year — longer in some cases — by VA facilities whose administrators ordered records falsified to show that vets’ appointments had been kept and their problems dealt with in a reasonably timely manner. At the Phoenix VA hospital alone — the facility that proved to be Ground Zero in the health care scandal — as many as 40 veterans died while waiting to receive care.

Appalling conditions in a country that pays such loud lip service to its support for those who defend it.

Though the necessity for something like the Veterans Choice Act was and is clear, it’s hardly solved the problem.

The reasons why depend on whom you ask. Some in Congress, including U.S. Sen. Johnny Isakson, R-Ga., say the VA is simply refusing to enforce it. Others, including VA officials and the Department of Justice, specifically Attorney General Loretta Lynch, say the law as written is unconstitutional. Under those circumstances, Deputy VA secretary Sloan Gibson said last week, using such authority "would only hinder VA's ability to hold senior officials accountable ... and make those actions stick."

The snag, according to a May 31 letter from Lynch, is that existing law gives high-level officials the right to appeal firings to a Merit Systems Protection Board, whereas the 2014 law gives final authority to an administrative judge. Lynch’s letter was in response to a filing by former Phoenix VA Health Care System Director Sharon Helman, who claims she was unconstitutionally denied her right to an appeal before the board.

That Helman deserved to be terminated, given the conditions at the Phoenix VA hospital, is hard to dispute. But like it or not, if the law gives her the right of appeal, then Lynch is correct on the facts of the case.

"Everyone knows VA isn't very good at disciplining employees,” said Rep. Jeff Miller, R-Fla., chairman of the House veterans panel, “but this decision calls into question whether department leaders are even interested in doing so."

That last part might or might not be fair. Isakson, meanwhile, is urging Congress to write a new bill that would close the administrative loopholes and pass constitutional muster. That’s the right approach.

This story was originally published June 20, 2016 at 4:01 PM with the headline "Feds say VA law unenforceable."