Seven years ago, the Department of Veteran Affairs was rocked by a series of scandals that showed the agency had months-long waiting times and created secret wait lists that were hidden to prevent revealing how long some some veterans waited to get care.
A lawsuit filed in Washington, D.C., but involving Fort Harrison in Montana, claims that similar wait-time data is being unfairly withheld, and that the department may be withholding information from veterans about how they can get quicker help in their communities.
Americans for Prosperity Foundation filed the suit because it wants to understand how the Veterans Community Care Program is being implemented. The program was created in the wake of the 2014 wait-time scandal and championed by members of Congress. The program set new standards for veterans care, including scheduling an appointment within 28 days of the request. If the VA cannot accommodate the care, then it also allowed the veteran to seek care outside the VA system.
The suit alleges that the VA has started using other criteria than what Congress approved to determine scheduling appointments like “patient preferred” or “clinically indicated” dates. Moreover, it says that the VA is cancelling and rescheduling appointment, essentially resetting the clock in order manipulate the data to give the appearance of complying with the law.
The lawsuit alleges that the VA also created an extra layer of oversight in the public information request process, which goes against the Freedom of Information Act, which dictates how a federal agency must respond to requests for information. In the complaint, the foundation describes a special review process the VA is using for “potentially embarrassing or politically sensitive records.”
Those requests that are deemed to have “substantial interest” go through an additional review process where the information is overseen by political appointees and other senior communications staff. At best, the suit argues this leads to unnecessary delays; at worst, it suggests that information is being stymied because it’s a political liability.
Finally, the suit claims that without lawmakers’ approval, the White House also suspended the community care program during the COVID pandemic. According to the suit, the VA said it had received “guidance from the White House… that referral to the community … will (only) continue when necessary.”
The lawsuit alleges that the VA is manipulating data, making it look better for reporting purposes.
For example, it said the VA is scheduling appointments outside the 28-day window without the consent of the veteran. It says the VA may be doing so without giving them the option of going to community care provider. Moreover, it says the VA is computing the wait times based on scheduled appointments, not completed appointments.
It also notes the VA has implemented a “temporary strategic pause to the MISSON Act standards,” without any Congressional authorization.
The AFPF sent requests for information to 14 different VA health care systems throughout the country, many of which were implicated in the 2014 scandal. Those include VA centers in Arizona, Florida, West Virginia and Montana.
Americans for Prosperity Foundation filed the information requests in June, and the VA system extended the deadline for response to July 13. However, AFPF said it provided no justification for the delay, provided no data, and has flagged the request as having “substantial interest,” triggering a set of higher level reviews. It also did not provide the data by the July 13 date.
David Herbst, state director for AFP, said the decision to sue is due in large part due to what veterans have been saying in Montana: Access to VA appointments is still difficult, and the appointments are often booked and rescheduled.
“Many of these vets don’t have other options and the VA may not be telling them (about the community care program),” Herbst said.
A spokesman for the VA said it’s the department’s policy not to comment on litigation.
Herbst said he wants the VA to be accessible and responsive.
“We absolutely need the VA which specializes in combat trauma and war-related medicine,” Herbst said.
However, he said the group would have preferred to receive the data and evaluate whether the changes passed by Congress are working — but that didn’t happen.
“Because of the history, we have to ask the question: Has it improved,” Herbst said.
Democratic Sen. Jon Tester of Montana is the chairman of the Senate’s Veterans Affairs Committee.
“Senator Tester is reviewing the details of this lawsuit and remains committed to holding VA accountable in meeting the needs of our nation’s veterans and their families,” a spokesman for Tester said. “He is laser-focused on expanding veterans’ access to high-quality care—especially in underserved communities across Montana—and delivering a VA health care system deserving of their service.”
Rep. Matt Rosendale’s office said that he was concerned about the report.
“Rep Rosendale is supportive of a more transparent VA and wants to insure the VA is compliant with its own laws and rules. He is worried that veterans are experiencing delays in care and their requests,” said Rosendale spokesman Harry Fones.
Sen. Steve Daines of Montana did not respond to several requests for this story.