VA Update Doug Bradshaw Walt Hall USU Health Law Symposium May 20, 2009

1. VA UpdateDoug BradshawWalt Hall USU Health Law SymposiumMay 20, 2009

2. VA Tort ClaimsPost 9/11 GI BillDoug BradshawAssistant General Counsel (021)

3. 9:50 am, July 28, 1945

4. Federal Tort Claims Act (1946)28 U.S.C. 1346(b), 2671-2680 Waives sovereign immunity of the U.S. for the negligent or wrongful acts or omissions of employees of Federal agencies acting within the scope of their employment

5. Amendments • 1966 - Mandatory Administrative Claim Process • Agencies given $25,000 in settlement authority • (U.S. Attorneys had $20,000) • 1988 – Increased delegation authorized for VA ($100,000) • 1990 – Increased delegation for other agencies authorized by Congress and increased by DOJ • 1993 – VA’s, DOD’s & USPS’ delegation increased to $200,000 • 2008 – VA’s, DOD’s & USPS’ delegation upped to $300,000

6. VA Tort Claims Organization • 22 Regional Counsels • Investigate original claims • Settlement authority up to $150,000 • Denial authority for any tort claim • Support US Attorney in Litigation • Coordinate with 021 on admin settlements >$150K, Reconsiderations, and Litigation

7. Tort Claims Section, PSG I • Deputy Assistant GC – Kathryn Simpson • 7 Staff Attorneys – Mary Bell, Sheldon Bolasny, Carl Boyer, Bob Broyles, Tim McKinney, Susan Ptacek, & Joan Weber • Paralegal – Loretta Shilling • 2 Support Staff - Deborah Lane Williams, Alecia Giles

8. Tort Claims Section, PSG I • Settlement authority to $300,000 • Reconsideration of Claims Denied by RCs • Advising DOJ on VA’s position as to settlements and appeals • Coordinating w/RC on all of above

9. VA Malpractice Claims Filed

10. VA Medical MalpracticeFiscal Years 1999-2008Amounts Paid

11. VA Malpractice Experience - FY 2008 • 1,377 new claims filed • $78M paid • Government prevailed in 92 percent of cases tried (SJ or beyond). • Average VA administrative settlement: $ 100,000 • Average litigation settlement: $ 285,000 • Average judgment: $ 213,000 • 62 percent of suits closed and 20 percent of claims closed were with a payment. • 86 percent of administrative claim closures were final (either settled, or denied without suit following).

12. Current (and recurrent) Issues • Adverse Events – Patient Communication – Mass Disclosures • “Employee” for FTCA Purposes • Medical Records – CPRS • Timeliness (and Quality) of Claim Decisions • Timeliness of Medical Reviews • Data Bank - Litigation

13. “Mass” Disclosures of Adverse Events • Marion (Illinois) VAMC • FYs 2006 and 2007 • VHA Office of the Medical Inspector found • 9 deaths attributable to Substandard Care • 10 deaths affected by substandard care • 24 with complications/prolonged recovery • 30 tort claims; 12 settled • 17 benefit claims; 14 granted

14. “Employee” for FTCA Purposes “Employee of the government includes … officers or employees of any federal agency …” “Federal agency does not include any contractor with the United States” 28 U.S.C. 2671

15. Medical Records EMR - What is a “legal” health record? HIM Brief #4 Guidelines for Defining a Legal Health Record

16. Timeliness of Claim Decisions Tort claim processing: In FY 2008,[the General Counsel] established a standard that we would investigate and resolve initial tort claims within 360 days with a view toward a goal of 180 days.* [*To be achieved by the end of FY 2010]

17. Timeliness of Claim Decisions We started FY 2008 with an average age of 475 days for pending medical malpractice claims, and we ended the year with an average age of 380 days. March 2009 – 319 days Quality Concerns – U.S. Attorney Civil Chiefs

18. Timeliness of Medical Reviews

19. National Practitioner Data BankVA Procedures - 38 C.F.R. 46.3 (c) Payment will be considered to have been made for the benefit of a physician, dentist or other licensed health care practitioner only if ( at least a majority) of a malpractice payment review panel concludes that payment was related to substandard care, professional incompetence or professional misconduct on the part of the physician, dentist or other licensed health care practitioner.

20. Data Bank Litigation Sobel v. United States, 571 F.Supp.2d 1222 (D. Kan. July 31, 2008) “The court, giving a reasonable inference to the allegations in the amended complaint, finds that the plaintiff has failed to sufficiently plead facts which would support a finding that the conduct of the review panel fell outside the scope of the discretionary function exception.”

21. Veterans Post 9/11 Educational Assistance Act of 2008(“Post 9/11 GI Bill”) • Public Law 110-252 (June 30, 2008) • Final Regulations, 74 Fed. Reg. 14654 (March 31, 2009) • Correction – 74 Fed. Reg. 17907 (April 20, 2009) • Effective August 1, 2009

22. Post 9/11 GI Bill • Tuition & Fees: • Paid up front to the school at the beginning of each term • Capped at the tuition cost of the most expensive public school in the state • More expensive schools offering veterans-only scholarships will be matched dollar for dollar • Books/Supplies: $1,000/year paid up front and divided by academic term • Monthly Living: Based on DoD’s BAH rate for E-5 with dependent - Uses zip code of the college/university

23. Tuition, Books, Living StipendBased on Post 9/11 Active Duty Service • 90 Consecutive Days: 40%     • 6 Cumulative Months: 50%     • 12 Cumulative Months: 60%     • 18 Cumulative Months: 70%     • 24 Cumulative Months: 80%     • 30 Cumulative Months: 90%     • 36 Cumulative Months: 100%   • Time to Use Benefit: 15 years • Buy In: None

24. Doug Bradshaw 202-461-4900 doug.bradshaw@va.gov