Aidpage is a
support network.
Ask for help
Offer help
Sign up now

haiki

Talk to haiki
Show: Conversations haiki's posts only
haiki   in reply to tort   on

Retired Veteran Needs Help

The following information with regard to ‘Alimony reform’ explains how disabled veterans need to get involved to protect their property interests, because Connecticut legislators will not. Disabled veterans are now going to have to step up in order to be included as part of any proposed legislation to eliminate their alimony payments.
=
This ‘permanent alimony elimination’ being proposed in the Connecticut legislature is the latest insult to all veterans. This has caught the interest of David Conway of “Connecticut Alimony Reform” (info@ctalimonyreform.com) who replied to my message by asking, “Bill, Have you been in touch with any veterans in Connecticut who can tell their story. It would help the presentation to the Legislature if we had a person that could present these experiences.”
=
If perhaps you are a Connecticut disabled veteran receiving disability compensation, divorced, having to pay alimony from his or her disability compensation, and is willing to tell “their story” to Connecticut Alimony Reform Group, and the Connecticut legislature if required?
=
INFORMATIONAL COMMENT STATE COURT JUDGES
=
States such as Massachusetts, West Virginia, California legislators, as well as other states, due to the changing realities of family life, either proposed or passed that ‘permanent current alimony’ obligations be eliminated in alimony reform legislation.
=
Looking at these many State legislative proposals, and those ratified into law, one can only wonder, with all this legislative thinking going on, what happened? The subject of the disabled veteran’s VA disability compensation used as alimony, when is this alimony reform suppose to happen? This is something disabled veterans’ have tried to do for a very, very long time.
=
It is time now to propose similar alimony reform legislation for disabled veterans. Disabled veteran’s have the exact same issue. However, correcting improper legal rulings imposed on disabled veteran‘s is the issue, as much as it is reform. Why now? For the reasons that follow, according to law.
=
38 USC 5301 Nonassignability and exempt status of benefits. "Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
=
“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
=
“Due process”. How is it, that state court judges can arbitrarily and capriciously award as alimony, with the mere wave of a hand, waive away a portion of a veteran’s VA disability rated compensation? Moneys in the form of disability compensation, the disability rights of a veteran, whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. State court judges, are in reality, playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration. Overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408, and the 14th Amendment.
=
Ninth Circuit Says Congress, Not Courts, Have Say Over VA Health Care
VETERANS FOR COMMON SENSE v. SHINSEKI December 13, 2011
=
Continually, State court judges disregard the law, as reduction in disability compensation cannot be “reduced unless an improvement in the veteran’s disability is shown to have occurred.” USC 1155 Authority for schedule for rating disabilities.
=
How are judges allowed the discretion to award as alimony disability compensation based on 'statutory' awards? Which are not predicated directly on the average reduction in earning capacity, but primarily upon consideration of noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. The purpose of the statutory award for loss or loss of use of a creative organ is to account for psychological factors.
=
“Clear and substantial” major damage to federal interests occurs when state court judges make lasting decisions, that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, by overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of….. 38 USC 5301. 42 USC § 407 - Assignment of benefits, carries similar language.
=
Where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating compensation? His future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely by state courts to healthy third parties in many cases, in a determined and engaging violation of the law. To allow what has been happening, was it the intent of Congress that state court judges substitute their judgment for the judgment of VA doctors and medical professionals? I don’t think so!
=
Where is it written? Will there be the same eagerness of Connecticut state legislators to extend this proposal and eliminate veterans disability compensation from alimony? Fight for your Connecticut disabled veterans.
=
Bill Heino Sr.
William_h43@yahoo.com

Talk to haiki
haiki  

the protection of VA disability from alimony

Perhaps we can relieve many of the problems disabled veteran’s are experiencing by trying to find another solution to the problems in divorce? Here is one.
=
Perhaps this… the protection of VA disability from alimony?
=
United States Court of Appeals for the Federal Circuit
=
PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs,
=
http://www.pva.org/atf/cf/%7BCA2A0FFB-6859-4BC1-BC96-6B57F57F0391%7D/legal_veterans%20due%20process.pdf
=
“…a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits.”
=
Let’s try this…..42 USC 1983, “Civil action for deprivation of rights.” Researching you will find that there is a much court room activity on this very subject. Below I have referenced as much information, facts, explanations, etc., on one subject, finding references, or case law which mirrors a state courts seizing VA federal funds used for veterans’ disability compensation.
=
As we have learned first hand is, that you cannot expect change in any law through letter writing. It cannot be accomplished. It’s impossible. Although what follows is an approach to a problem and can only be accomplished through a court proceedings. The legal specifics of filing would require a lawyer. My thinking as it stands right now. During divorce court proceedings when the court judge advises a disabled veteran that a portion of his disability compensation is being awarded as part of alimony/child support, the veteran must claim his Due Process to appeal this disability compensation issue.
=
Yes, the court may have given the veteran Due Process as far as the court proceeding in divorce and alimony/child support is concerned to settle a state action, however, what has to be settled is Due Process, “…a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits.” United States Court of Appeals for the Federal Circuit PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veteran Affairs,

Due Process because of 38 USC 5301. “Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
=
42 USC 1983, I wonder if anybody has given any thought to it’s potential? Because VA disability compensation are federal funds, appealing on Due Process grounds, whether the state has the right to deny the appeal of deprivation of rights under, 42 USC 1983, “Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State.. subjects, or causes to be subjected, any citizen of the United States… deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, … or other proper proceeding for redress,..”
http://legal-dictionary.thefreedictionary.com/Section+1983

=
42 U.S.C. § 1983, which provides a remedy for deprivation of constitutional rights when that it takes place "under color of any statute, ordinance, regulation, custom, or usage" of a State. “..a claimant must demonstrate that the underlying statute creates enforceable “rights” because “it is rights” after all, “not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under” the statute.” 42 USC 1983 illustrates a “state action” and a “right to be heard", whereupon a remedy is available to challenge state court rulings.
=
The question then, does a state court have the legal right to take away a veteran’s VA disability compensation? We think not! Because a state court judge cannot make these kinds of judgments affecting disabled veterans’ of the many unknown consequences in any question of law or fact under any law administered by the Veterans Administration. Appealing would settle the question, is this a federal, or state question? In any appeal ,we as veterans’ are concerned primarily with state court judges observing the law. Keeping in mind that a judge is immune from lawsuits.
=
The following should give you some idea as to what is expected in a 42 USC 1983 filing. Because of a court judges outward disregard, hostility and detachment towards disabled veterans‘, much-less their medical concerns, you will find the courts injustice applies to each qualification listed in the civil jury instructions. Backed up by the decision in Cushman v. Shinseki.
=
FEDERAL CIVIL JURY INSTRUCTIONS OF THE
SEVENTH CIRCUIT
http://www.ca7.uscourts.gov/7thcivinstruc2005.pdf

=
Prepared By The Committee on Pattern Civil Jury Instructions of the Seventh Circuit
=
CONSTITUTIONAL TORTS: 42 U.S.C. §1983
=
7.12 EIGHTH AND FOURTEENTH AMENDMENTS:
FAILURE TO PROVIDE MEDICAL ATTENTION - ELEMENTS
To succeed on his claim of failure to provide medical attention, Plaintiff must prove each of the following things by a preponderance of the evidence:
1. Plaintiff had a serious medical need;
2. Defendant was deliberately indifferent to Plaintiff’s serious medical need;
3. Defendant’s conduct caused harm to Plaintiff;
[4. Defendant acted under color of law].
If you find that Plaintiff has proved each of these things by a preponderance of the
evidence, then you should find for Plaintiff, and go on to consider the question of damages.
=
As we all know when it comes to a veterans’ disability compensation activist state court judges rely on a function relied on by most state court judges, that is, forum shopping, stare decisis rulings. Rulings, based purely on judges acting without any medical knowledge, or medical authority. Speculating, primarily without understanding the medical consequences of rendering a deliberate and reckless concept of law upon a veteran’s unknown medical surgical conditions, physical disabilities, severity, or needs. Stare decisis, the justification for many the court’s illegal taking of veterans’ disability compensation award to a third party.
=
The practice of medicine is a privilege and a calling, and that it combines both art and science. Before we argue whether a state court judge is in any position to award a veteran’s disability compensation to a third party is within the courts purview, we must first, before the seizure of any persons property, determine Due Process rights. Rights guaranteed in the 5th Amendment of the United States Constitution, and the 14th Amendment. “..nor shall any State deprive any person of life, liberty, or property, without Due Process of law: nor deny to any persons within it’s jurisdiction the equal protection of the laws.” Due Process recognized as the core of the liberty, protection from arbitrary governmental action. This, for veterans’ opens the door to 42 USC 1983.
=
Depriving any person of life, liberty, or property, without a hearing or guaranteed procedure to insure fairness is exactly what has happened to disabled veterans. Rulings, that are "unconstitutional", acting under color of state law for deprivations of rights secured by federal law, is justification for an immediate cause of Due Process action for an appeal under 42 USC 1983.
=
Consider Public Health law 42 C.F.R. § 440.230(c), which prohibits an arbitrary denial of coverage based on diagnosis, type of illness, or condition which list required services for the classifications of categorically needy and medically needy, respectively.
=
In searching there are vast numbers of 42 USC 1983 case law references, the following is one that parallels closely to the argument. Keeping in mind that Due Process applies for many reasons. It applies because your veterans disability compensation was seized illegally by a State court. Illegally, until your Due Process question has been settled. Higgins filed this § 1983 action on August 4, 1998.
=
Vincent M. HIGGINS, Appellant, v. Howard L. BEYER, Department of Corrections;
=
http://ftp.resource.org/courts.gov/c/F3/293/293.F3d.683.99-5556.html

=
“New Jersey Department of Corrections, and 13 employees of the Adult Diagnostic and Treatment Center ("ADTC employees") violated 38 U.S.C. § 5301(a) by seizing money derived from a veteran's disability benefits check from his inmate account to pay a state court-ordered fine, and that he was deprived of his constitutional right to due process because his request for a predeprivation hearing was ignored.”
Conclusion
“Higgins's complaint alleged sufficient facts to support a § 1983 claim that he was deprived of his rights under § 5301(a) and the Due Process Clause of the Fourteenth Amendment. Accordingly, we VACATE the dismissal of this action. Upon REMAND, the district court is directed to permit Higgins to amend his complaint so as to attempt to allege a § 1983 retaliation claim for the exercise of his federal rights.”
=
References, without links, I have listed for it’s message.
=
“[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs – e.g., food, clothing, shelter, medical care, and reasonable safety – it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. [Citations omitted.] The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.”
=
“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”

=
38 USC 5301 has repeatedly been invoked as the prime motivation in divorce action, defending against a veterans’ disability compensation being awarded to third parties. The Constitution provides for federal court jurisdiction whenever a case “arises under” federal law. The Congress also has provided in 28 USC 1331, that federal courts may take jurisdiction over any civil action arising under the Constitution, laws or treaties of the United States. “…The Court has interpreted the Constitution language much more liberally, holding that as long a federal question is an “original ingredient” in the case, even if it does not present an issue to be litigated, the Constitution may be satisfied…”
=
Federal Court jurisdiction can be invoked under 42 USC 1983, 28 USC 1331, when the statement of the plaintiff’s claim, properly pleaded, shows that it is based on federal law. If ignored, the ‘RULE OF LAW’ has collapsed.
=
Talk to haiki
haiki   in reply to SysBot   on

Aidpage group discussing "veterans"...

 in response to haiki...   Updating,.... The claim has been filed with the United States Court of Appeals for the Federal Circuit.
Talk to haiki
haiki   in reply to Elaine of TSA   on

Prescription Assistance

 in response to oldsalt...   Oldsalt; I found that you can get the VA to allow you to get your VA medication filled at your local pharmacy. I recently had my VA clinic allow me to do this. The following found on the internet is from 2006. Should your VA hesitate you must insist.

"In a Nov. 21 memo to network directors, a senior VA health official said medical personnel can write prescriptions to be filled at private-sector pharmacies as long as certain restrictions are followed.

The memo is the VA’s reaction to an expanding phenomenon in which the two chains — Wal-Mart Stores Inc., and Target Corp. — are filling some generic drug prescriptions for $4.

Because this is less than the $8 co-pay charged for veterans in health care priority categories 4 through 8 — mostly those being treated by the VA for injuries and disabilities not connected to military service — VA officials have been pressed by veterans to help them get the lower-cost drugs.

VA spokeswoman Laurie Tranter said the department understands that veterans, like all consumers, want to pay as little as possible for prescription drugs, which is why it issued the guidance to its networks….

In the memo to network directors, William Feeley, VA deputy undersecretary for health operations and management, said the VA cannot transfer a prescription directly to a private-sector pharmacy, as veterans have been asking, because it is illegal.

But VA doctors can write prescriptions for veterans that local pharmacies can fill, Feeley said. His memo cautions that medical staff must meet state requirements for writing prescriptions, and that when a new one is written, any existing prescription within the VA system must be canceled “to prevent patients from receiving excessive quantities” of drugs.”
Talk to haiki
haiki  

U.S. Court of Appeals has settled split pill argument.

DALLAS, Jan. 13, 2009 — Fewer veterans filled their prescriptions for cholesterol-lowering drugs after an increase in co-payment costs for prescription drugs, researchers report in Circulation: Journal of the American Heart Association.
=
The question of excessive copay for VA split pill prescriptions has been settled. Even though the VA mentions their concern for “reasonable charges.., billings practices closer to industry standard charge structures and billing practices”, and the question of “actual cost of dispensing” , veterans will continue to be overcharged for spilt pill prescriptions. The United States Court of Appeals for Veterans’ Claims has made their ruling. A two (2) to one (1) decision. Judge Hagel, dissented, and accordingly, found the ruling, “..arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” and filed a separate opinion. University of Washington School of Law professor Thomas Andrews agrees, “Overall, I am sympathetic to the Court and the VA’s desire to avoid doing a cost analysis on every single drug but find Judge Hagel to be legally more persuasive.” Judge Hagels comments follow.
=
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS.
NO. 09-112 (Decided April 11, 2011)
=
“HAGEL, Judge, joins, concurring in part and dissenting in part: I concur with the majority's conclusion that the plain and unambiguous language of 38 U.S.C. § 1722A(a)(1) requires a veteran to pay a full copayment for a 30-day supply of medication, without regard to the dosage or number of pills prescribed to the veteran. I write separately, however, to express my disagreement with the majority's conclusion that the phrase "cost to the Secretary for medication," as used in section
1722A(a)(2), is susceptible to more than one interpretation.”
=
“When a pure question of law, such as the interpretation of a statute, is at issue, the Court
reviews the conclusions of the Board de novo, without deference. Smith v. Gober, 14 Vet.App. 227, 230 (2000). As explained above, after reviewing the language of section 1722A, I would conclude that the plain and unambiguous language of subsection (a)(2) prohibits the Secretary from requiring a veteran to pay an amount in excess of the cost to the Secretary for each 30-day supply of medication furnished to him or her, without regard to the administrative costs incurred by the Secretary in actually dispensing such medication. I would therefore conclude that the Board's interpretation of that provision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Kent v. Principi, 389 F.3d 1380, 1384 (2004) (holding that the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard of review "contemplates de novo review of questions of law"). Accordingly, I would set aside the Board's December 2008 decision to the extent that it concluded that the appellant's copayment was not excessive under section 1722A(a)(2) and would remand the matter for further development and readjudication consistent with a proper interpretation of section 1722A(a)(2).
=
Lastly, I understand that some might say that the interpretation that I express would place
an unnecessary accounting burden on VA. The calculation that I believe the statute requires VA to make in these instances is, however, routinely made up front by private pharmacies when determining the profit margin sought on each drug dispensed to their customers. Thus, I do not believe that such a calculation places an unreasonable burden on VA. As a result, I do not believe that my interpretation of section 1722A produces an absurd result”.
Talk to haiki
haiki   in reply to Elaine of TSA   on

Prescription Assistance

 in response to haiki...   VA billing methodology examined.

To remind you of the Veterans Administrations arbitrary, and unreasonable billing practices, regarding veterans prescription copay obligations. Example; a veteran is dispensed a prescription for 90 pills for a 30-day period, taking 3 pills per day, copay cost is $8. Another veteran is prescribed the same exact dispensed 90 pill prescription amount that requires splitting, meaning a 6 month, one split pill per-day supply. Copay cost $48. A $500 % increase over an $8 dispensed supply.

Until you can get past the cost for the same exact VA dispensed $8 pill medication, as explained in paragraph (2), of 38 USC 1722A, “The Secretary may not require a veteran to pay an amount in excess of the cost to the Secretary for medication described in paragraph (1),” and as well, the Federal Register, forget what it says about 30-day supply in paragraph (1).

Title 38 USC 1722A, paragraph (1) codification is clarified in the Federal Register dated 12/6/2001, Final Rule, as to the actual cost in dispensed prescription supplies. “Also, under 38 USC 1722A, VA may not require a veteran to pay an amount in excess of the actual cost of the medication and pharmacy administrative costs related to the dispensing of the medication. VHA conducted a sturdy…and found that VA incurred a cost of $7.28 to dispense an outpatient medication even without the consideration of the actual cost of the medication…Under these circumstances, we believe that a $7 copayment would not exceed VA’s cost.” [Present day copayment now $8.]

In contrast to the VA’s over-charges in split pill billings, veterans do not receive the same billing consideration, or billing practices, as devised by VA methodology that involve third party collection problems. One in particular being, significantly the crux of the problem, an “…amount that the third-party payer would pay to a provider other than VA…”, for the same prescription drugs. Such providers, as Kmart, and Wal-Mart who offer, as an example, 90 pills of the same exact prescription, which results into 180 split pills, a 6 month supply, cost $10. A cost which is demonstrated because it is common knowledge.

One would only wish that the following considerations be extended openly and fairly to all VA prescription, and medical care billings. This 10/6/2010 ruling by the Veterans Affairs Department (VA), regarding a veterans 3rd party billings. “This document amends the medical regulations concerning “reasonable charges” for medical care or services provided or furnished by VA to a veteran for a nonservice-connected disability.” Effective March 18, 2011.

As you will again see, some veterans are treated differently when it comes to prescription billing. There are thousands of veterans having to split their VA pill medication, adding to costs many cannot afford. Which is why, “…the increase in co-payments adversely affected the use of these usually long-term medications, especially since the prevalence of heart disease is higher in the VA population [Jalpa A. Doshi, Ph.D., lead author of the study and research assistant professor of medicine at the University of Pennsylvania School of Medicine.”

the increase in co-payments adversely affected the use of these usually long-term medications, especially since the prevalence of heart disease is higher in the VA population than in the general population,”


Review the following third-party rulings by the Veterans Affairs Department.

“…VA amends the regulations regarding charges billed for prescription drugs not administered during treatment by changing the billing formula…..”

“..VA has the right to recover or collect reasonable charges for medical care or services (including the provision of prescription drugs) from a third party.”

“..a third-party payer….has the option of paying, to the extent of its coverage, either the billed charges or the amount the third-party payer demonstrates it would pay for care or services furnished by providers other than entities of the United States for the same care or services in the same geographic area.”

“VA has authority to bill third-party payers in an amount constituting “reasonable charges.”…Moreover, VA has taken steps to keep costs at a minimum.”

“..in some cases, a third party payor may be allowed to pay less than the VA billed amount….either the billed charges or the amount the third-party payor would pay for the prescription drugs to private sector providers in the same geographic area.”

“…a third-party payer's liability is limited, to the extent of its coverage, to the lesser of the billed charges or the amount that the third-party payer would pay to a provider other than VA.”

“As required by 38 U.S.C. 1729(c)(2)(A), we consulted with the Comptroller General of the United States prior to promulgating this final rule.”

Link: Charges Billed to Third Parties for Prescription Drugs Furnished by VA to a Veteran for a Nonservice-Connected Disability

A claim regarding VA split pill billings is presently before the United State Court of Appeals for Veterans’ Claims.
Talk to haiki
haiki   in reply to haiki   on

Judges overstepping. A veteran's observation.

Judges overstepping. A veteran's further observation.
=

How can state court judges waive away disability rights, and arbitrarily award as alimony or, as in other cases just take, a portion of a veteran’s disability rated compensation, determined on a case-by-case basis of a veteran’s whose disability rating that maybe, is factored in as critical? Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." §12132 (2000 ed.). The entity being the VA, and the State court judgments as if all disabilities are exactly the same? State court judges are overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the veteran. The law is quite clear, along with violating the canons of standard conduct for judges, violating “Authority for schedule for rating disabilities.” 38 USC 1155, "..., in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.”

=

I now wondered, if state court judges are allowed to take away a veteran’s disability compensation without a medical license, or medical knowledge, how does the Board of Veterans Appeals, who are continually faced with determining a veteran’s disability, or other medical claim, adjudicate these medical questions?
=

38 C.F.R. PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
http://law.justia.com/us/cfr/title38/38-2.0.1.1.5.html
=

§ 20.101 Rule 101. Jurisdiction of the Board.
“(b) Appellate jurisdiction of determinations of the Veterans Health Administration. The Board's appellate jurisdiction extends to questions of eligibility for hospitalization, outpatient treatment, and nursing home and domiciliary care; for devices such as prostheses, canes, wheelchairs, back braces, orthopedic shoes, and similar appliances; and for other benefits administered by the Veterans Health Administration. Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board's jurisdiction. Typical examples of these issues are whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an attending physician may be faced.”
(Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)
=

§ 20.901 Rule 901. Medical opinions and opinions of the General Counsel.
“(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion.”
(Authority: 38 U.S.C. 7109)

=
Even the Social Security Administration… has medical evidence standards they must follow.
42 USC 423 “In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual’s treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.”

=
As veterans’ all know too well , state court judges, as incompetent as they are in the knowledge required to determine medical necessity and procedures, upon eyeing a veterans VA disability compensation, as alimony, the standards of judicial jurisprudence, and laws are totally ignored.
=

The major test in applying 38 USC 1155 will be, "state family law must not do major damage to clear and substantial federal interest[s]," We, as veterans’ believe when it comes to a veteran’s health issues, it will indeed, interfere, damage, federal interests.
=

38 USC 1155, "..., in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.”
=

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+38USC1155.

=
Even the Social Security Administration with a more than comparable disability caseload relies on professional medical opinions and evaluations. As we see in Title 42 USC sec. 421. But state court judges, having no medical expertise what-so-ever, are unique, special, and not having to apologize, or justify the seizing a veterans’ VA disability compensation.
=

TITLE 42--THE PUBLIC HEALTH AND WELFARE CHAPTER 7--SOCIAL SECURITY
42 Sec. 421. Disability determinations
=

“(h) Evaluation of mental impairments by qualified medical professionals “
=

“..shall be made only if the Commissioner of Social Security has made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.”
=

“..the possibility that such review could result in the termination of benefits, and the right of the individual to provide medical evidence with respect to such review.”
=

“Travel Expenses for Medical Examinations, Reconsideration Interviews, and Proceedings Before Administrative Law Judges Provisions authorizing payment of travel expenses either on an actual cost or commuted basis, to an individual for travel incident to medical examinations, and to parties, their representatives and all reasonably necessary witnesses for travel…”
=
State court judges disrespect for veterans’ is evident, and they continue to further disable the already disabled veteran.

Talk to haiki
haiki   in reply to Elaine of TSA   on

Prescription Assistance

 in response to haiki...   

VA prescription copayment studies

The following study is from “Reforming VA’s Medication Copayment Statute” by Timothy J. McDonald. “..graduate of the Health Law Certificate Program at the University of Pittsburgh School of Law and is currently serving as a Presidential Management fellow in the Patient Care Services Office of the Veterans Health Administration.” A link follows. This is followed by studies showing the effect of the VA copay increases.

“The limitation imposed by the copayment legislation that prevents VA from charging the veteran more than the cost of the medication to VA has led to at least one case before the Board of Veterans’Appeals (Board). 31 This case involved “pill splitting,” a practice where VA provides medication in a dosage that is higher than needed, and then has the patient split a single pill into two separate doses”

“However, the current medication copayment that many veterans are charged is based on outdated legislation…”

“This problem is not limited to cases where the veteran is splitting tablets. In fact, based on VA’s increased efficiency and price negotiation in the pharmaceutical arena, it seems very likely that under the current copayment plan many veterans are charged excessive copayments by VA.44”

http://www.va.gov/vbs/bva/manuals/vlr1mcdonald.pdf

 

Co-Payment Increases Result in Gaps in Veterans' Prescription Usage

American Heart Association rapid access journal report:

Study highlights: -- Cholesterol-lowering drug adherence drops with an increase in VA prescription co-payments.

DALLAS, Jan. 13, 2009 — Fewer veterans filled their prescriptions for cholesterol-lowering drugs after an increase in co-payment costs for prescription drugs, researchers report in Circulation: Journal of the American Heart Association.
http://www.reuters.com/article/pressRelease/idUS212289+14-Jan-2009+PRN20090114

Impact of a prescription copayment increase on lipid-lowering medication adherence in veterans.

http://www.ncbi.nlm.nih.gov/pubmed/19139387

The Effect of a Medication Copayment Increase on Metformin Adherence by Veterans with Diabetes

Rationale: Copayment increases have been shown to affect health care demand in many settings, and adherence to essential medications may decrease when medication copayments rise. In 2002, the Veterans Administration (VA) increased medication copayments from $2.00 to $7.00 per 30-day prescription fill.
http://www.allacademic.com/meta/p_mla_apa_research_citation/0/9/0/4/4/p90444_index.html

 

 

Talk to haiki
haiki  

Judges overstepping. A veteran's observation.

 

 

=

How can state court judges waive away disability rights, and arbitrarily award as alimony a portion of a veteran’s disability rated compensation, determined on a case-by-case basis of a veteran’s whose disability rating that maybe, is factored in as critical? Judgment as if all disabilities are exactly the same? State court judges are overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the veteran. And in doing so, ignorance of the law is no excuse, the law is quite clear, along with violating the canons of standard conduct for judges, violating “Authority for schedule for rating disabilities.” 38 USC 1155, "..., in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.” Violating as well, 38 USC 5301, 42 USC 1408.

=

As veterans’ all too well know, state court judges upon eyeing a veterans disability compensation, and as well as Social Security disability, as alimony, the standards of judicial jurisprudence, and law are totally ignored. However, the following federal judge’s ruling supports the standard for which state court judges are governed.

State can't deny kids Medicaid services, judge says.

http://www.ajc.com/search/content/metro/stories/2008/06/16/medicaid_children_lawsuit.html

=

“The decision last week by U.S. District Judge Thomas W. Thrash pertains to the case of a 13-year-old developmentally disabled girl, Anna C. Moore of Danielsville in north Georgia. Her doctor prescribed 94 hours of private duty nursing care a week for her, but the state Department of Community Health approved only 84 hours.

=

The Atlanta federal judge found the state does not have the discretion to deny funding for services prescribed by a treating physician. "The decision affirms that treating physicians, and not the state, should make those decisions," said the girl's attorney, Joshua Norris of the nonprofit Georgia Advocacy Office.”

=

VETERANS LAW JOURNAL

http://74.125.45.104/search?q=cache:se1h9j9w5GMJ:www.cavcbar.net/Fall_2004.pdf+the+statutes+in+broadly+precluding+judicial+review+of+the+contents&hl=en&ct=clnk&cd=11&gl=us

=

A Quarterly Publication of the Court of Appeals for Veterans Claims

Bar Association

=

“Thus, the Federal Circuit found that “[t]he statutory scheme … consistently excludes from judicial review all content of the ratings schedule as well as the Secretary’s actions in adopting or revising that content.” Looking at the legislative history, the Federal Circuit pointed out that “[t]he language in the legislative history is not limited to the percentages of the disability ratings, as appellants argue, but matches the statutes in broadly precluding judicial review of the contents of the disability rating schedule in toto.”

=

What needs to be done? As explained above briefly, you know your fellow veterans’ are taking a beating from judges in state divorce court. Seizing veterans’ VA disability compensation. Being awarded as alimony. These judges, although recognizing federal law, somehow justify their interpretation of 38 USC 5301 and 10 USC 1408, and the Supremacy Clause as not being perhaps strong enough. Now comes, 38 USC 1155, “Authority for schedule for rating disabilities”, this is possibly just what the disabled veteran needs to overcome the state court’s opposition and uncertainty, with a law that leaves no room for ambiguity in it’s meaning.

=

I don’t believe 1155 argument has ever been tried, or introduced in court. Now is the time to test this. Once introduced, the court will have to deal and rule on this. If there are any upcoming veterans' court divorce proceedings, or even possibly pending cases, the introduction of 1155 could possibly be the one thing that will remove, hopefully forever, another burden from our disabled veterans, at an unfortunate time in their lives. I hope you found this advice worthwhile. Please post this notice on your bulletin board, email, or newsletter, there may be a veteran that can benefit from this advice Thank you.

=

Talk to haiki
haiki   in reply to SysBot   on

Aidpage group discussing "veterans"...

For the reasons made obvious as you read, the Board of Veterans' Appeals, so-called veterans’ court, once again, are determined in frustrating my efforts in appealing my claim, by a still further delay. Is there something about this case that warrants this delay? Could the reason be, of the well over 1.1 million VA prescriptions, veterans are being over-charged?

=

My claim, VA violation of 38 USC 1722A was denied by the Board of Veterans Appeals. I then filed with the United States Court of Appeals for Veterans Claims (CVA). On 7/11/2007 was remanded back to the Veterans Board of Appeals (BVA). The BVA lost and rebuilt the file, that being the reason for the remand. After repeated checking, as of 5/20/08, now 10 months later, this remand, has not been returned to the BVA. So they say. It is obvious they may have lost it again in order that this claim, or I, would go away. Disappear. Perhaps I'll die? Case closed!

=

VA prescriptions are dispensed in supplies of 90 days. However, for those unfamiliar with my claim, to explain these over-charges by the VA in violation of 38 USC 1722A, this example will be at it's simplest and most understandable throughout my explanation, . Let's say that you are at the VA, standing in line getting your prescription. The vet in front of you is getting the exact same prescription. She picks up her 30 day supply of 30 pills. Her copay for a 30 day supply of 30 pills is $8. You also are dispensed an $8 supply of 30 pills of the same exact prescription. Being that your condition is not as severe, your prescription requires you to split this 30 pill $8 supply. After you sit down at your kitchen table and split your 30 pill supply, now you have 60 split pills, a 2 month supply. But hold on! Except your co-payment cost for this 30 pill, $8 supply, now that it has been split, has increased. It now carries a co-payment of $16. This explains how veterans' has been overcharged by the VA since 2002. Shafted again (3/13/07) by the Board of Veterans Appeals in their phony denial. Do you see anything wrong? You should!

=

"Pursuant to Section 20.1404(b) (2002), the motion alleging clear and unmistakable error in a prior Board decision must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error."

=

The two persons listed on the denial that had crafted, and fashioned up the logic that follows? Board of Veterans’ Appeals counsel M. Taylor, and Veterans' Law Judge, Judge John E. Ormand. I will show you exactly where, in their efforts to mislead, and to rewrite the law. This is the kind of garbage veterans have to put up with! Let's look at the reasoning in their BVA denial.

=

Cited on the cover page of my denial was, "THE ISSUE. Whether the veteran is obligated to pay the Department of Veterans Affairs (VA) a copayment for each 30-day or less supply of medication provided by the VA on an outpatient basis in an amount established under 39 C.F.R. § 17.110."

=
Criteria & Analysis by the Board of Veterans Appeals.” 3/13/ 2007
=

Here the Board understands the problem. "The record reflects that the appellant is prescribed a 12.5 mg daily dose of his medication. Because the medication is not dispensed in a 12.5 mg tablet, his physician has instructed him to split a 25 mg tablet in half to achieve the proper daily dosage. Thus, he receives a 30-day prescription consisting of fifteen 25 mg pills, each of which he splits in half to take one half of a pill per day. The appellant contends that the standard co-payment is excessive in light of the pill splitting." However, no where in my claim did I mention the word ‘standard', nor was the word 'standard' mentioned in 38 USC 1722A, or Federal Register, Final Rule. Here, in introducing 'standard', supposedly for the purpose of establishing two (2) ‘standard’ co-payments, counsel Taylor purposely has rewritten the law, in order to mislead.

=

In addition, the Board notes that the reference to the cost of medication contained in 38 U.S.C.A. Sec. 1722A clearly pertains to VA’s cost in dispensing the medication, not the cost to the appellant.” Is there a difference? My claim...clearly pertains to VA's co-pay cost in dispensing medication, and it’s inflated cost to the appellant! Which is the "excess of the cost" for the 'standard' co-payment, and is then arbitrarily increased, to those veterans required to split their 30-pill, $8 supplies. Dispensed exactly the same, and in like manner, as all other VA dispensed 'standard' co-payment and abundant 30-day $8 supplies of 30-45-60-90 pills.

=

Counsel Taylor references remarks from the July 16, 2001 Federal Register. “Also, as we stated in the proposal, under 38 U.S.C. 1722A, VA may not require a veteran to pay an amount in excess of the actual cost of the medication and the pharmacy administrative costs related to the dispensing of the medication. VHA conducted a study...and found that the VA incurred a cost of $7.28 to dispense an outpatient medication even without consideration of the actual cost of medication..”

=

Dispensing! Where there is no difference in the prescription, supply amount, handling, or dispensing time, a 30 pill supply is dispensed, with a $16 co-payment. Interestingly, in the same exact manner as all 30-day, 30 pill $8 supplies are dispensed, as explained in the Federal Register! No splitting of pills was involved in the dispensing procedure. However, of an exact same 8$ dispensed supply, automatically these 'standard' 30-day $8 co-payment whole pill supplies are increased 100% (2 month split pill supply).

=

Counsel Taylor, citing, "1722A clearly pertains to VA's cost in dispensing". Counsel Taylor just does not get it! Nor does Judge Ormand. Their is no difference! No difference in dispensing two supplies that are exactly alike in prescription and supply, or to the cost related to dispensing! However, counsel Taylor is emphatic in making the point, conclusive, that it clearly pertains to the cost in dispensing? Or is it the ISSUE, the " 30-day or less supply"? For some unknown reason, which counsel Taylor did not elaborate on, a second exact duplicate supply increases, double the co-pay cost? Although, counsel Taylor may have tried, but failed.

=

“38 USC 1722A; (a)(1) Subject to paragraph (2), the Secretary shall require a veteran to pay the United States $8 for each 30-day supply of medication furnished such veteran under this chapter on an outpatient basis for the treatment of a non-service-connected disability or condition. If the amount supplied is less than a 30-day supply, the amount of the charge may not be reduced.”

Which then also means, if the amount is not less than 30-day supplies, as described in paragraph (1) the Secretary may not require a veteran to pay an amount in excess of the cost for medication provided to a veteran as described in paragraph (2).

=

Citing my argument, BVA’s counsel Taylor, quotes inaccurately, to confuse, again to mislead. 38 USC 1722A “Copayment for medications. Paragraph (2) The Secretary may not require a veteran to pay an amount in excess of the cost of the Secretary for medication as described in paragraph (1).”

=

The correct reading is, “(2) The Secretary may not require a veteran to pay an amount in excess of the cost to the Secretary for medication described in paragraph (1).”

=

"The appellant has not cited to, and the Board is unable to find any authority allowing for a deviation from the standard copayment." The Board is right! I too, am unable to find that authority.

=

Where the Board got it wrong! Of all what you have understood and read so far, what follows puts to rest any doubts as to the 30-day medication over-charges in my claim, and refutes the reasoning of the Board of Veterans’ Appeals in their reading of 38 USC 1722A. Of everything that has been explained, BVA counsel Taylor’s reference to 38 USC 17.110, (addressed in my claim) is the key to explaining, what counsel Taylor and Veterans Law Judge John E. Ormand, and the VA failed to, or did not, want to comprehend, or consider in their thinking, in understanding 38 USC 1722A.

=

The Board counsel Taylor, referenced 38 USC 17.110; Copayments for Medication. “..a veteran is obligated to pay a copayment for each 30-day or less supply of medication provided by the VA on an outpatient basis (other than medication administered during treatment).”

=

Counsel Taylor made it a point to reference 17.110. Veterans' do know we have to pay a co-payment. THE ISSUE was obviously a "30-day or less supply." The Board's main argument to my claim, is their erroneous interpretation of what the law is. "Each 30-day or less supply", is suggesting to them, an across the board 30-day 15 pill supply is less. However, "..each 30-day or less supply", refers to only one (1) condition. Veterans who may visit a VA facility on a one time basis as an outpatient. For emergency room care, or see a doctor for a cut finger, brief illness, etc. I wish counsel Taylor would explain another circumstance in which a veteran may be charged an “excess of the cost”? Please enlighten us. I know of no other "excess of the cost" than what I claim.

=

Counsel Taylor better not again, bring up 15 pills is less than a 30-day supply! The reality is, a veteran who falls under the 17.110 meaning, "obligated to pay a co-payment for each 30-day or less supply...on an outpatient basis (other than medication administered during treatment.)", refers to medication, in a dispensed 30-day supply of 15 pills, for treatment on an outpatient basis. The veteran in fact is not receiving less than a 30-day supply, this is his full 30-day monthly supply during outpatient treatment! For this reason, as described in 1722A, paragraph (2) is the basis for my claim. A 30-day, 30-pill, dispensed supply, for treatment, whether or not it is split, according to 1722A carries the maximum co-payment of $8. Which the Board refuses to recognize, but rather relies on a "each 30-day or less" argument. "The secretary may not require a veteran to pay an amount in excess of the cost, for medication described in paragraph (1)." $8 for each dispensed 30-pill, 30-day supply co-payment, includes supplies of the abundant 30-day supplies of 45-60 or 90 pills, and as well for all veterans' under treatment, receiving a same exact dispensed 30-pill supply. A prescribed 2 month supply (split pill).

=

Counsel Taylor in an effort in re-enforcing the Board's position cites “(b) The Secretary, pursuant to regulations which the Secretary shall prescribe may-...(1) increase the co-payment amount in effect under subsection (a);..” Pursuant to regulations? Means according to the law! To regulations as written. Where is this regulation mentioned in the Code of Federal Regulations, this "standard" co-payment you talk about, for $16 split pill supplies? Where, counsel Taylor, does it mention increased co-payment cost for one of two (2) exact duplicate 30-day prescription supplies? Other than my example, where is it mentioned 15 pills is less than 30-day supply? "The Administrative Procedure Act requires that agencies publish administrative regulations in the Federal register before they can be legally effective." Where?

=

The VA, and the BVA , they want me to pass on, disappear. When that happens, veterans you lose. They don't want you to win. However, this claim will live on, when other veterans think it's important enough of a veteran's issue to file a claim. It's (BVA) $50 filing fee is well spent. A younger veteran, whose prescription requires splitting, can file right now, and can keep playing the same silly game that the VA and the BVA insists on playing, just as long as they can.

=

You mention the Veterans Administration, I then have to mention....

VA overcharges/violations.

Sunday April 6, 10:13 am ET
By Hope Yen, Associated Press Writ

AP IMPACT: VA Workers Charge $2.6B on Gov't Credit Cards at Luxury Hotels, High-End Retailers
=
WASHINGTON (AP) -- Veterans Affairs employees last year racked up hundreds of thousands of dollars in government credit-card bills at casino and luxury hotels, movie theaters and high-end retailers such as Sharper Image and Franklin Covey -- and government auditors are investigating, citing past spending abuses.
=
All told, VA staff charged $2.6 billion to their government credit cards. CORRECTION. After AP published this story, AP quickly corrected the dollar amount downward. However, this does alter the deed.
=
Yes, and then there are those few veterans, including my brother, criticize me for going after my claim, VA violation of 1722a, split pill co-payment overcharges. Well, along with the acknowledgement by many veterans, I’m glad I’m doing it. Because this is what happens when you are not vigilant, with nobody watching the store. Here are just a few remarks, regarding my claim, from those that apparently have more money than others, and march to a different drummer.
-------------------------------------
“So what exactly do you want them to do? Other than waste the time and money of the VA dealing with a trivial claim so that they can't help other veterans."
-----------------------------------
"It really bothers me to see people waste the VA's resources on things like this. It probably cost the VA thousands of dollars to work this claim up to the point of the BOVA, not to mention a lot of time of the people working in the VA. Even if you would have won on the claim, it would have wound up costing the VA more money so they could set up a new accounting system to deal with the change. That would likely cost them hundreds of thousands of dollars and would not really have benefited anyone that I can see.”
-----------------------------------
Veterans get prescription drug benefits? I'd love to complain about $8.00 prescriptions. Every attempt I've made to get into the VA Health System I've been told I don't have any benefits.
------------------------------------
It's annoying to hear some people complain about what they are getting while others of us are "locked out" of the system entirely.
----------------------------------
HOGWASH! I suggest you do some homework.
----------------------------------------------
No one is doubting your claim, as much as why you are doing it. What they are trying to say is, you are tying up valuable resources that could be better served to adjudicate an individuals claim that had to go the way of the courts. What they are saying, also, is be thankful you have the VA who charges much less a co-pay than what most greedy outside civilian insurance companies charge. When I had outside insurance, before I became TDIU, I was paying $15.00, $20.00, and $25.00 as my co-pays for my medication, so 8 dollars is fairly trivial an amount to pay for prescriptions, not to mention people that have to pay full price for medications...co-pays do not exist for them. So I do understand where you are coming from and where you are trying to go, it just seems like you are trying shove this issue down everyones collective throats to get your point. Good luck in your endeavors, yet I hope some other veterans claim hasn't been backed up because of your want to change what seems to you to be an inequity seen only by you.
-------------------------------
The VA violation of 38 USC 1722a problem is not petty, or trivial as suggested, using the words of another veteran who thought that the VA money and effort should be spent doing the serious work of the VA in helping veterans. How did the VA employee do that? By living it up, buying and enjoying things for personal use on the government dime. My claim, VA violation of 38 USC 1722a effects all veterans, and I imagine most veterans, that receive VA prescriptions that require pill splitting.
=
If a veteran is charged $16 for, using the Board of Veterans' Appeals description, of an actual dispensed 30-day $8 medication supply, add up this VA dispensed $8 overcharge by the well over 1.1 million veterans that require their medication be split. (You'll be adding up just one months overcharges). All the while, employee's using government credit cards for what-ever.
=
John E. Ormand, Jr. BVA Veterans Law Judge, writes, "Also, under 38 USC 1722a, VA may not require a veteran to pay an amount of the actual cost of medication and pharmacy administration costs related to the dispensing of medication." And what is the dispensing cost for a 30-day supply? $8. Why then does this dispensed actual 30-day $8 supply cost a veteran $16? Because he is required to split his pill medication. In other words, you can have any amount for a 30-day, $8 supply, but if you are required to split any supply over 30 pills, the VA will double the copay cost. The USC or the CFR do not mention anything about doubling the cost of prescriptions, when the prescription requirement calls for the veteran split their pill medication.
=
Should I prevail, this is not money the VA would be losing, this is money the VA should never had taken from veterans in the first place. My claim was remanded back to the BVA from the United States Court of Appeals for Veterans Claims. I was notified of this remand on July 16, 2007. On Feb. 11, 2008, I called the BVA inquiring about my claim. I was told it was "coming back from the Court, but hasn't reached us yet." 6/9/2008, I called asking for it's status. "Still at the Court of Veterans Appeals." It's now been 11 months! Are they not in the same town? Is this such a hot item that the VA does not want to adjudicate it? This is how our courts work. This is how the VA works. Think this is bad? You haven't seen nothing yet. Wait till our men and women return from Iraq and Afghanistan.

Talk to haiki
haiki   in reply to Elaine of TSA   on

Prescription Assistance

For the reasons made obvious as you read, the Board of Veterans' Appeals, so-called veterans’ court, once again, are determined in frustrating my efforts in appealing my claim, by a still further delay. Is there something about this case that warrants this delay?

Could the reason be, of the well over 1.1 million VA prescriptions, veterans are being over-charged?

=

My claim, VA violation of 38 USC 1722A was denied by the Board of Veterans Appeals. I then filed with the United States Court of Appeals for Veterans Claims (CVA). On 7/11/2007 was remanded back to the Veterans Board of Appeals (BVA). The BVA lost and rebuilt the file, that being the reason for the remand. After repeated checking, as of 5/20/08, now 10 months later, this remand, has not been returned to the BVA. So they say. It is obvious they may have lost it again in order that this claim, or I, would go away. Disappear. Perhaps I'll die? Case closed!

=

VA prescriptions are dispensed in supplies of 90 days. However, for those unfamiliar with my claim, to explain these over-charges by the VA in violation of 38 USC 1722A, this example will be at it's simplest and most understandable throughout my explanation, . Let's say that you are at the VA, standing in line getting your prescription. The vet in front of you is getting the exact same prescription. She picks up her 30 day supply of 30 pills. Her copay for a 30 day supply of 30 pills is $8. You also are dispensed an $8 supply of 30 pills of the same exact prescription. Being that your condition is not as severe, your prescription requires you to split this 30 pill $8 supply. After you sit down at your kitchen table and split your 30 pill supply, now you have 60 split pills, a 2 month supply. But hold on! Except your co-payment cost for this 30 pill, $8 supply, now that it has been split, has increased. It now carries a co-payment of $16. This explains how veterans' has been overcharged by the VA since 2002. Shafted again (3/13/07) by the Board of Veterans Appeals in their phony denial. Do you see anything wrong? You should!

=

"Pursuant to Section 20.1404(b) (2002), the motion alleging clear and unmistakable error in a prior Board decision must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error."

=

The two persons listed on the denial that had crafted, and fashioned up the logic that follows? Board of Veterans’ Appeals counsel M. Taylor, and Veterans' Law Judge, Judge John E. Ormand. I will show you exactly where, in their efforts to mislead, and to rewrite the law. This is the kind of garbage veterans have to put up with! Let's look at the reasoning in their BVA denial.

=

Cited on the cover page of my denial was, "THE ISSUE. Whether the veteran is obligated to pay the Department of Veterans Affairs (VA) a copayment for each 30-day or less supply of medication provided by the VA on an outpatient basis in an amount established under 39 C.F.R. § 17.110."

=
Criteria & Analysis by the Board of Veterans Appeals.” 3/13/ 2007
=

Here the Board understands the problem. "The record reflects that the appellant is prescribed a 12.5 mg daily dose of his medication. Because the medication is not dispensed in a 12.5 mg tablet, his physician has instructed him to split a 25 mg tablet in half to achieve the proper daily dosage. Thus, he receives a 30-day prescription consisting of fifteen 25 mg pills, each of which he splits in half to take one half of a pill per day. The appellant contends that the standard co-payment is excessive in light of the pill splitting." However, no where in my claim did I mention the word ‘standard', nor was the word 'standard' mentioned in 38 USC 1722A, or Federal Register, Final Rule. Here, in introducing 'standard', supposedly for the purpose of establishing two (2) ‘standard’ co-payments, counsel Taylor purposely has rewritten the law, in order to mislead.

=

In addition, the Board notes that the reference to the cost of medication contained in 38 U.S.C.A. Sec. 1722A clearly pertains to VA’s cost in dispensing the medication, not the cost to the appellant.” Is there a difference? My claim...clearly pertains to VA's co-pay cost in dispensing medication, and it’s inflated cost to the appellant! Which is the "excess of the cost" for the 'standard' co-payment, and is then arbitrarily increased, to those veterans required to split their 30-pill, $8 supplies. Dispensed exactly the same, and in like manner, as all other VA dispensed 'standard' co-payment and abundant 30-day $8 supplies of 30-45-60-90 pills.

=

Counsel Taylor references remarks from the July 16, 2001 Federal Register. “Also, as we stated in the proposal, under 38 U.S.C. 1722A, VA may not require a veteran to pay an amount in excess of the actual cost of the medication and the pharmacy administrative costs related to the dispensing of the medication. VHA conducted a study...and found that the VA incurred a cost of $7.28 to dispense an outpatient medication even without consideration of the actual cost of medication..”

=

Dispensing! Where there is no difference in the prescription, supply amount, handling, or dispensing time, a 30 pill supply is dispensed, with a $16 co-payment. Interestingly, in the same exact manner as all 30-day, 30 pill $8 supplies are dispensed, as explained in the Federal Register! No splitting of pills was involved in the dispensing procedure. However, of an exact same 8$ dispensed supply, automatically these 'standard' 30-day $8 co-payment whole pill supplies are increased 100% (2 month split pill supply).

=

Counsel Taylor, citing, "1722A clearly pertains to VA's cost in dispensing". Counsel Taylor just does not get it! Nor does Judge Ormand. Their is no difference! No difference in dispensing two supplies that are exactly alike in prescription and supply, or to the cost related to dispensing! However, counsel Taylor is emphatic in making the point, conclusive, that it clearly pertains to the cost in dispensing? Or is it the ISSUE, the " 30-day or less supply"? For some unknown reason, which counsel Taylor did not elaborate on, a second exact duplicate supply increases, double the co-pay cost? Although, counsel Taylor may have tried, but failed.

=

“38 USC 1722A; (a)(1) Subject to paragraph (2), the Secretary shall require a veteran to pay the United States $8 for each 30-day supply of medication furnished such veteran under this chapter on an outpatient basis for the treatment of a non-service-connected disability or condition. If the amount supplied is less than a 30-day supply, the amount of the charge may not be reduced.”

Which then also means, if the amount is not less than 30-day supplies, as described in paragraph (1) the Secretary may not require a veteran to pay an amount in excess of the cost for medication provided to a veteran as described in paragraph (2).

=

Citing my argument, BVA’s counsel Taylor, quotes inaccurately, to confuse, again to mislead. 38 USC 1722A “Copayment for medications. Paragraph (2) The Secretary may not require a veteran to pay an amount in excess of the cost of the Secretary for medication as described in paragraph (1).”

=

The correct reading is, “(2) The Secretary may not require a veteran to pay an amount in excess of the cost to the Secretary for medication described in paragraph (1).”

=

"The appellant has not cited to, and the Board is unable to find any authority allowing for a deviation from the standard copayment." The Board is right! I too, am unable to find that authority.

=

Where the Board got it wrong! Of all what you have understood and read so far, what follows puts to rest any doubts as to the 30-day medication over-charges in my claim, and refutes the reasoning of the Board of Veterans’ Appeals in their reading of 38 USC 1722A. Of everything that has been explained, BVA counsel Taylor’s reference to 38 USC 17.110, (addressed in my claim) is the key to explaining, what counsel Taylor and Veterans Law Judge John E. Ormand, and the VA failed to, or did not, want to comprehend, or consider in their thinking, in understanding 38 USC 1722A.

=

The Board counsel Taylor, referenced 38 USC 17.110; Copayments for Medication. “..a veteran is obligated to pay a copayment for each 30-day or less supply of medication provided by the VA on an outpatient basis (other than medication administered during treatment).”

=

Counsel Taylor made it a point to reference 17.110. Veterans' do know we have to pay a co-payment. THE ISSUE was obviously a "30-day or less supply." The Board's main argument to my claim, is their erroneous interpretation of what the law is. "Each 30-day or less supply", is suggesting to them, an across the board 30-day 15 pill supply is less. However, "..each 30-day or less supply", refers to only one (1) condition. Veterans who may visit a VA facility on a one time basis as an outpatient. For emergency room care, or see a doctor for a cut finger, brief illness, etc. I wish counsel Taylor would explain another circumstance in which a veteran may be charged an “excess of the cost”? Please enlighten us. I know of no other "excess of the cost" than what I claim.

=

Counsel Taylor better not again, bring up 15 pills is less than a 30-day supply! The reality is, a veteran who falls under the 17.110 meaning, "obligated to pay a co-payment for each 30-day or less supply...on an outpatient basis (other than medication administered during treatment.)", refers to medication, in a dispensed 30-day supply of 15 pills, for treatment on an outpatient basis. The veteran in fact is not receiving less than a 30-day supply, this is his full 30-day monthly supply during outpatient treatment! For this reason, as described in 1722A, paragraph (2) is the basis for my claim. A 30-day, 30-pill, dispensed supply, for treatment, whether or not it is split, according to 1722A carries the maximum co-payment of $8. Which the Board refuses to recognize, but rather relies on a "each 30-day or less" argument. "The secretary may not require a veteran to pay an amount in excess of the cost, for medication described in paragraph (1)." $8 for each dispensed 30-pill, 30-day supply co-payment, includes supplies of the abundant 30-day supplies of 45-60 or 90 pills, and as well for all veterans' under treatment, receiving a same exact dispensed 30-pill supply. A prescribed 2 month supply (split pill).

=

Counsel Taylor in an effort in re-enforcing the Board's position cites “(b) The Secretary, pursuant to regulations which the Secretary shall prescribe may-...(1) increase the co-payment amount in effect under subsection (a);..” Pursuant to regulations? Means according to the law! To regulations as written. Where is this regulation mentioned in the Code of Federal Regulations, this "standard" co-payment you talk about, for $16 split pill supplies? Where, counsel Taylor, does it mention increased co-payment cost for one of two (2) exact duplicate 30-day prescription supplies? Other than my example, where is it mentioned 15 pills is less than 30-day supply? "The Administrative Procedure Act requires that agencies publish administrative regulations in the Federal register before they can be legally effective." Where?

=

The VA, and the BVA , they want me to pass on, disappear. When that happens, veterans you lose. They don't want you to win. However, this claim will live on, when other veterans think it's important enough of a veteran's issue to file a claim. It's (BVA) $50 filing fee is well spent. A younger veteran, whose prescription requires splitting, can file right now, and can keep playing the same silly game that the VA and the BVA insists on playing, just as long as they can.

=

Talk to haiki
haiki   in reply to Elaine of TSA   on

Prescription Assistance

You mention the Veterans Administration, I then have to mention....

VA overcharges/violations.

Sunday April 6, 10:13 am ET
By Hope Yen, Associated Press Writ

AP IMPACT: VA Workers Charge $2.6B on Gov't Credit Cards at Luxury Hotels, High-End Retailers
=
WASHINGTON (AP) -- Veterans Affairs employees last year racked up hundreds of thousands of dollars in government credit-card bills at casino and luxury hotels, movie theaters and high-end retailers such as Sharper Image and Franklin Covey -- and government auditors are investigating, citing past spending abuses.
=
All told, VA staff charged $2.6 billion to their government credit cards.
========================================================================
Yes, and then there are those few veterans, including my brother, criticize me for going after my claim, VA violation of 1722a, split pill co-payment overcharges. Well, along with the acknowledgement by many veterans, I’m glad I’m doing it.  Because this is what happens when you are not vigilant, with nobody watching the store.  Here are just a few remarks, regarding my claim, from those that apparently have more money than others, and march to a different drummer.
=            ----------------------------------------
“So what exactly do you want them to do? Other than waste the time and money of the VA dealing with a trivial claim so that they can't help other veterans."
=
"It really bothers me to see people waste the VA's resources on things like this. It probably cost the VA thousands of dollars to work this claim up to the point of the BOVA, not to mention a lot of time of the people working in the VA. Even if you would have won on the claim, it would have wound up costing the VA more money so they could set up a new accounting system to deal with the change. That would likely cost them hundreds of thousands of dollars and would not really have benefited anyone that I can see.”
=            -------------------------------
Veterans get prescription drug benefits? I'd love to complain about $8.00 prescriptions. Every attempt I've made to get into the VA Health System I've been told I don't have any benefits.
=
It's annoying to hear some people complain about what they are getting while others of us are "locked out" of the system entirely.
                            ----------------------------------

HOGWASH! I suggest you do some homework.
=
            ----------------------------------------------
No one is doubting your claim, as much as why you are doing it. What they are trying to say is, you are tying up valuable resources that could be better served to adjudicate an individuals claim that had to go the way of the courts. What they are saying, also, is be thankful you have the VA who charges much less a co-pay than what most greedy outside civilian insurance companies charge. When I had outside insurance, before I became TDIU, I was paying $15.00, $20.00, and $25.00 as my co-pays for my medication, so 8 dollars is fairly trivial an amount to pay for prescriptions, not to mention people that have to pay full price for medications...co-pays do not exist for them. So I do understand where you are coming from and where you are trying to go, it just seems like you are trying shove this issue down everyones collective throats to get your point. Good luck in your endeavors, yet I hope some other veterans claim hasn't been backed up because of your want to change what seems to you to be an inequity seen only by you.
            -------------------------------
The VA violation of 38 USC 1722a problem is not petty, or trivial as suggested, using the words of another veteran who thought that the VA money and effort should be spent doing the serious work of the VA in helping veterans. How did the VA employee do that? By living it up, buying and enjoying things for personal use on the government dime. My claim, VA violation of 38 USC 1722a effects all veterans, and I imagine most veterans, that receive VA prescriptions that require pill splitting.

 If a veteran is charged $16 for, using the Board of Veterans' Appeals description, of an  actual dispensed 30-day $8 medication supply, add up this VA dispensed $8 overcharge by the well over 1.1 million veterans that require their medication be split. (You'll be adding up just one months overcharges). All the while, employee's using government credit cards for what-ever.

John E. Ormand, Jr. BVA Veterans Law Judge, writes, "Also, under 38 USC 1722a, VA may not require a veteran to pay an amount of the actual cost of medication and pharmacy administration costs related to the dispensing of medication." And what is the dispensing cost for a 30-day supply? $8. Why then does this dispensed actual 30-day $8 supply cost a veteran $16? Because he is required to split his pill medication. In other words, you can have any amount for a 30-day, $8 supply, but if you are required to split any supply over 30 pills, the VA will double the copay cost. The USC or the CFR do not mention anything about doubling the cost of prescriptions, when the prescription requirement calls for the veteran split their pill medication.

Should I prevail, this is not money the VA would be losing, this is money the VA should never had taken from veterans in the first place. My claim was remanded back to the BVA from the United States Court of Appeals for Veterans Claims. I was notified of this remand on July 16, 2007. On Feb. 11, 2008, I called the BVA inquiring about my claim. I was told it was "coming back from the Court, but hasn't reached us yet." 4/10/2008, I called asking for it's status. "Still at the Court of Veterans Appeals." It's now been 9 months! Are they not in the same town? Is this such a hot item that the VA does not want to adjudicate it? This is how our courts work. This is how the VA works. Think this is bad? You haven't seen nothing yet. Wait till our men and women return from Iraq and Afghanistan.



 

 

Talk to haiki
haiki  

About haiki

Talk to haiki