War, its Aftermath, and U.S. health policy: Toward a comprehensive health program for America's military personnel, veterans, and their families

Journal of Law, Medicine and Ethics

Volumn 36, Issue 4, 2008, Pages 677-689

  Jackonis, Michael J ^a   Deyton, Lawrence ^b,c   Hess, William J ^a  

^a WALTER REED ARMY MEDICAL CENTER   (United States)

^b DEPARTMENT OF VETERANS AFFAIRS   (United States)

^c GEORGE WASHINGTON UNIVERSITY MEDICAL CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; FAMILY; FEMALE; GOVERNMENT; HEALTH CARE POLICY; HEALTH INSURANCE; HUMAN; LEGAL ASPECT; MALE; SOLDIER; STATISTICS; UNITED STATES; WAR;

FAMILY; FEMALE; HEALTH POLICY; HUMANS; INSURANCE, HEALTH; MALE; MILITARY PERSONNEL; UNITED STATES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; WAR;

EID: 57349106539     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2008.00322.x     Document Type: Article

References (104)

1. See e.g., S. Vogel Overhaul Urged in Care for Soldiers: Dole-Shalala Commission Wants Bush to Act Quickly Washington Post, July 26, 2007, at A01.
2. Military Casualty Information, available at http://siadapp.dmdc.osd.mil/ personnel/CASUALTY/castop.htm (last visited August 21, 2008).
3. Defense Base Closure and Realignment Commission, Final Report, September 8, 2005, available at http://www.brac.gov/finalreport.html (last visited August 21, 2008) [hereinafter cited as Final Report].
4. In 1995, the Veterans Health Administration (VHA) initiated a groundbreaking and successful redesign of the veterans' health care system with an overall goal of ensuring high-quality care throughout the system. See K. W. Kizer Prescription for Change: The Guiding Principles and Strategic Objectives Underlying the Transformation of the Veterans Healthcare System March 1996, at 11, available at http://www1.va.gov/vhareorg/rxweb.pdf (last visited August 21, 2008).
5. Id.
6. Kaiser Foundation Background Brief: Military and Veterans health Care available at http://www.kaiseredu.org/topics-im.asp?imID=1&parentID= 61&id=755 (last visited August 21, 2008).
7. G. J. Young et al. Quality Improvement in the US Veterans Health Administration International Journal for Quality in Health Care 9, no. 3 (1997 183 188, available at http://intqhc.oxfordjournals.org/cgi/reprint/9/3/183.pdf (last visited August 21, 2008).
8. See Department of Veterans Affairs, Office of Inspector General, Review of Access to Care in the Veterans Health Administration, May 17, 2006.
9. According to the National Alliance to End Homelessness, "Convergent sources estimate that between 23 and 40 percent of homeless adults are veterans. The U.S. Department of Veterans estimates that as many as 200,000 homeless people are veterans, and that over the course of the year, approximately 336,627 veterans experience homelessness." National Alliance to End Homelessness Homeless Policy Focus Areas: Veterans available at http://www.naeh.org/section/ policy/focusareas/veterans (last visited August 21, 2008).
10. See Statement of Vice Admiral Adam M. Robinson, USN, MC, Surgeon General of the Navy, before the Subcommittee on Military Personnel of the House Armed Services Committee, Update on Navy Medicine's Efforts in Support for Wounded, Ill and Injured Service Members, February 15, 2008 Assistant Secretary of Defense (Health Affairs), Traumatic Brain Injury and Post-traumatic Stress Disorder Quick Facts Informational Sheet for Military Members, July 2, 2007 United States House of Representatives, Committee on Veterans Affairs - Democratic Staff, Review of Capacity of Department of Veterans Affairs Readjustment Counseling Service Vet Centers, October 2006.
11. Committee on Medical Evaluation of Veterans for Disability Compensation Board on Military and Veterans Health, A 21st Century System for Evaluating Veterans for Disability Benefits, Institute of Medicine of the National Academies, Washington, D.C., 2007, at 48, available at http://www. vetscommission.org/ (last visited August 21, 2008) [hereinafter cited as Committee on Medical Evaluation]: "According to the head of Disabled American Veterans, as of February 2007, there were 553 amputees from OIF/OEF who had lost one or more arms, legs, hands, and/or feet. Almost a quarter [128] suffered multiple amputations [U.S. Congress, Senate and House of Representatives, Committees on Veterans' Affairs, 2007a]. More than 400 OEF/OIF veterans had suffered major burns by 2006 [Kupersmith, 2006]." See, e.g., Wounded Warrior Project, "Creation of Amputee Centers," available at https://www.woundedwarriorproject.org/content/view/491/900/ (last visited August 21, 2008): "The biggest problem currently facing the VA's prosthetics program is that there is no system-wide consistency and coordination from medical center to medical center.".
12. R. Kaye and I. Estrada Female Veterans Report More Sexual, Mental Trauma CNN.com, March 19, 2008, available at http://www.cnn.com/2008/US/03/19/women. veterans/index.html (last visited August 21, 2008).
13. J. H. Pendleton, Testimony before the Subcommittee on national Security and Foreign Affairs DoD and VA: Preliminary Observations on Efforts to Improve Health Care and Disability Evaluations for Returning Service Members September 26, 2007, at 6 (GAO 07-1256T), available at http://nationalsecurity.oversight. house.gov/documents/20070926135646.pdf (last visited August 21, 2008).
14. For purposes of this article, we intend an expansive meaning of the "family" to include individuals who may share households, but generally are not currently included within the definitions of "eligibility" and/or "dependents" for purposes of health care coverage (e.g., mothers and fathers-in-law, stepchildren).
15. See S. Hosek and G. Cecchine Reorganizing the Military Health System: Should There Be a Joint Command Rand Corporation, 2001, available at http://www.rand.org/pubs/monograph-reports/MR1350/ (last visited August 21, 2008)
16. P. Shin, S. Rosenbaum, and D. R. Mauery Medicaid's Role in Treating Children in Military Families Robert Wood Johnson Foundation, October 2005, available at http://www.gwumc.edu/sphhs/healthpolicy/chsrp/downloads/Medicaid- military-102405.pdf (last visited August 27, 2008).
17. See Task Force on the Future of Military Health Care Final Report, available at http://www.dodfuturehealthcare.net/images/103-06-2-Home-Task-Force- FINAL-REPORT-122007.pdf (last visited August 21, 2008).
18. Report of the Task Force on Returning Global War on Terror Heroes, April 19, 2007, available at http://www1.va.gov/taskforce/page.cfm?pg=4 (last visited August 21, 2008) [hereinafter cited as GWOT Task Force Report]. The term "Global War on Terror" generally refers to Operation Enduring Freedom (OEF) in Afghanistan, and Operation Iraqi Freedom (OIF), among other operations worldwide. See "Authorization for Use of Military Force" (Public law 107-40), September 18, 2001, which states "[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.".
19. Id. See also Recommendation O-9, at 64: "Provide Outreach and Education to Community Health Centers.".
20. DoD Directive 6200.04.
21. 23 Stat. 112 (directing that "Medical officers of the Army and contract surgeons shall whenever possible attend the families of the officers and soldiers free of charge.").
22. See M. J. Jackonis, Jr. Considerations in Medicare Reform: the Impact of Medicare Preemption on State Laws Annals of Health Law 13, no. 179 (Winter 2004 182 195.
23. This expanded health care program for DoD dependents was originally called "Medicare" until the Social Security Administration adopted the name for the federal health insurance program for the elderly and disabled.
24. Eligibility is determined by regulations promulgated by the Service Secretaries and requires enrollment in the Defense Eligibility Enrollment System (DEERS). DoD Directive 1341.1. Retirees and dependents eligible for MHS care are transferred to Medicare as their primary coverage at age 65.
25. October 1, 1966.
26. January 1, 1967.
27. H.R. REP. NO. 99-718, at 237 (1986).
28. GAO CHAMPUS Reform Initiative: Unresolved Issues GAO T-HRD-87-4, March 12, 1987, available at http://www.gao.gov/docdblite/info.php?rptno=T-HRD-87-4 (last visited August 21, 2008).
29. S. Rep. No. 99-331, at 243-44 (1986).
30. TRICARE Program, 10 U.S.C. Chapter 55; 32 C.F.R. § 199.17(a)(6)(ii).
31. TRICARE Program, 10 U.S.C. Chapter 55; 32 C.F.R. § 199.17(a)(6)(ii).
32. See http://www.tricare.mil/tma/AboutTMA.aspx (last visited August 27, 2008).
33. Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Pub. L. 100-526, 102 Stat. 2623, 10 U.S.C. § 2687 note), or the Defense Base Closure and Realignment Act of 1990 (Pub. L. 100-526, Part A of Title XXIX of 104 Stat. 1808, 10 U.S.C. § 2687 note). See Final Report, supra note 3.
34. Section 712 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001.
35. 10 U.S.C. § 1076b (TRICARE program: TRICARE Standard coverage for members of the Selected Reserve).
36. D. Priest and A. Hull Soldiers Face Neglect, Frustration at Army's Top Medical Facility Washington Post, February 18, 2007, at A01.
37. Statement of Subcommittee Chairman Vic Snyder, Military Personnel Subcommittee Hearing on Walter Reed before the House Armed Services Committee, June 26, 2007.
38. See Statement of Lieutenant General Eric. B. Schoomaker, MC, Surgeon General of the Army, before the Subcommittee on Military Personnel of the House Armed Services Committee, Army Medical Action Plan, February 15, 2008.
39. At the core of any viable health system is the ability to sustain access to affordable qualified health care providers. This is particularly true for the MHS, which relies heavily on a direct care delivery model using Military Treatment Facilities. This system must be able to attract, recruit, and retain providers, which can often involve a significant service obligation commitment. While beyond the scope of this article, the effect on provider recruiting and retention from the demands placed on the MHS system must be considered in any comprehensive reform proposals. U.S. military operations in support of the GWOT have created - and will continue to create - additional challenges to ensuring access to primary and specialty care services. See L. M. Colarusso and B. Bender Pentagon Fears Healthcare Costs Will Erode Readiness: Aging Population Is Driving Up Fees Boston Globe, March 5, 2007
40. M. Croasdale Military Doctor Recruiting Takes Wartime Hit: A Sharp Decline in Medical Students Accepting Army and Navy Scholarships Sparks a New Recruiting Campaign American Medical Association News, August 28, 2006
41. T. Philpott Surgeon General: Looming Doctor Shortage Stars and Stripes, July 13, 2006
42. J. W. Crawley Navy Going Civilian for Its Medical Conversion: 3,643 Positions to Be Eliminated by 2011 San Diego Union-Tribune, August 9, 2004.
43. U.S. Department of Veterans Affairs, available at http://www1.va.gov/ health/AboutVHA.asp (last visited August 21, 2008).
44. President Lincoln's second inaugural address (1865 see http://www1.va.gov/opa/feature/history/history1.asp (last visited August 21, 2008).
45. S. Reinberg Almost 2 Million U.S. Vets Lack Health Insurance HealthDay Reporter, October 30, 2007 (citing Steffie Woolhandler, M.D., associate professor, medicine, Harvard Medical School, Boston, and Greg Scandlen, founder, Consumers for Health Care Choices, Hagerstown, Md.).
46. 38 U.S.C. § 1705.
47. Veterans' Health Care Eligibility Reform Act of 1996 (Act), Pub. L. 104-262, § 104, codified at 38 U.S.C. § 1704 et seq. See 38 USC § 1705 and 38 CFR § 17.36. See generally http://www.va.gov/ healtheligibility/ (last visited August 21, 2008); Federal Benefits for Veterans and Dependents (2006 Edition).
48. See VA Budget Formulation and Reporting, September 2006, GAO-06-958.
49. See VA Budget Formulation and Reporting, September 2006, GAO-06-958.
50. VA Health Care Fact Sheet 16-3, April 2006.
51. National Defense Authorization Act of 2008 (P.L. 110-181).
52. See Reinberg, supra note 41.
53. According to the U.S. Department of Veterans Affairs Web site, the financial income threshold is $27,790 for a veteran with no dependents and the range graduates upward to $38,948 for four dependents.
54. See Reinberg, supra note 41 (citing Steffie Woolhandler, M.D., associate professor, medicine, Harvard Medical School, Boston, and Greg Scandlen, founder, Consumers for Health Care Choices, Hagerstown, Md. in the October 30, 2007 issue of American Journal of Public Health online).
55. U.S. Department of Veterans Affairs, The Capital Asset Realignment for Enhanced Services Report, available at http://www1.va.gov/caresdecision/ (last visited August 21, 2008) [hereinafter cited as CARES Report].
56. See also Department of Veterans Affairs, Office of Inspector General, Review of Access to Care in the Veterans Health Administration, May 17, 2006, at i-ii.
57. See CARES Report, supra note 51, at 2-6.
58. VHA Directive 2004-060, October 28, 2004, at A-1.
59. http://www.reuters.com/article/pressRelease/idUS157508+18-Aug- 2008+PRN20080818 (last visited August 27, 2008). VA Secretary Peake has announced a series of programs and initiatives targeted to increase access and care for veterans who live in rural areas remote from any VA health care facility.
60. U.S. Department of Health and Human Services, Oral Health in America: A Report of the Surgeon General, May 25, 2000, available at http://www. surgeongeneral.gov/library/oralhealth/ (last visited August 21, 2008) see CARES Report, supra note 51 Report of the President's Commission on Care for America's Returning Wounded Warriors, July 2007, available at http://www.pccww.gov/ (last visited August 21, 2008).
61. See Institute of Medicine, Insuring America's Health: Principles and Recommendations, Institute of Medicine of the National Academies, Washington, D.C., 2007.
62. 32 C.F.R. § 199.17.
63. See Shin, Rosenbaum, and Mauery, supra note 15.
64. The Early Periodic Screening, Diagnosis, and Treatment (EPSDT) Program is the child health component of Medicaid.
65. S. Rosenbaum, D. R. Mauery, P. Shin, and J. Hidalgo, National Security and U.S. Child Health Policy: The Origins and Continuing Role of Medicaid and EPSDT GW Department of Health Policy, Robert Wood Johnson Foundation, April 2005, available at http://www.gwumc.edu/sphhs/healthpolicy/chsrp/downloads/mil- prep042605.pdf (last visited August 27, 2008).
66. National Association of Community Health Centers & Association for Community-Affiliated Plans The Impact of Community Health Centers & Community-Affiliated Health Plans on Emergency Department Use April 2007, available at http://www.communityplans.net/ResourceCenter/tabid/60/Default.aspx (last visited August 21, 2008) [hereinafter cited as National Association].
67. Health Resources and Services Administration (HRSA), available at http://www.bphc.hrsa.gov/about/ (last visited August 21, 2008) National Association of Community Health Centers (NACHC), available at http://www.nachc.org/about-our-health-centers.cfm (last visited August 21, 2008).
68. 42 U.S.C. § 254b.
69. See National Association, supra note 62.
70. Public Health Service Act Section 330(h).
71. DoD Directive 6200.04; see e.g., K. T. Rhem Marine Commandant Ties TRICARE to Military Readiness American Forces Press Service, January 24, 2001, available at http://www.defenselink.mil/news/newsarticle.aspx?id=45116 (last visited August 21, 2008).
72. D. Miles Face of Defense: Army Recruiter Offers Formula for Success American Forces Press Service, November 6, 2007, available at http://www.defenselink.mil/News/NewsArticle.aspx?ID=48056 (last visited August 21, 2008).
73. D. Cave San Antonio Proudly Lines Up Behind the Military Recruiter New York Times, October 7, 2005.
74. 42 C.F.R. Part 460.
75. The PACE program is a unique capitated managed care benefit for the frail elderly provided by a not-for-profit or public entity. The PACE program features a comprehensive medical and social service delivery system using an interdisciplinary team approach in an adult day health center that is supplemented by in-home and referral services in accordance with participants' needs CMS, PACE Fact Sheet, available at http://www.cms.hhs.gov/PACE/Downloads/ PACEFactSheet.pdf (last visited August 21, 2008).
76. We refer to such a proposed facility as a "Community Health SuperCenter™.".
77. CARES report, at 2-7, 2-18, 2-22, and Appendix A (listing 35 "Promising VA/DoD Collaborations").
78. Bureau of Primary Health Care Web site, President's Health Centers Initiative, available at http://bphc.hrsa.gov/presidentsinitiative/ (last visited August 27, 2008): "Raising the profile of a much needed issue, Florida Association of Community Health Centers head Andy Behrman testified before the House Veterans Affairs Committee in support of expanding care to veterans through community health centers. Testifying on behalf of the National Rural Health Association, Behrman outlined how the health centers are in many rural areas with significant numbers of veterans. He also urged the Committee to enhance the ability of the VA to contract with health centers as they look for ways to expand access to care for our expanding number of veterans.".
79. See GWOT Task Force Report, at 12.
80. C. Lee Study Finds 1.8 Million Veterans Are Uninsured: Figure Has Grown by 290,000 Since 2000, Professor Tells House Veterans Panel Washington Post, June, 21, 2007, at A09 (citing Steffie Woolhandler, M.D., associate professor, medicine, Harvard Medical School, findings presented to House Committee on Veterans Affairs), available at http://www.washingtonpost.com/wp-dyn/content/ article/2007/06/20/AR2007062002161.html (last visited August 21, 2008).
81. See GWOT Task Force Report, at 12.
82. Department of Veterans Affairs, Analysis of VA Health Care Utilization among U.S. Global War on Terrorism Veterans, Veterans Health Administration Office of Public Health and Environmental Hazards, Washington, D.C., May 2008. It is important to note that the data available for this analysis are mainly administrative information and are not based on a review of each patient record or a confirmation of each diagnosis. These data are important mainly for health care planning purposes. These data cannot be considered as confirmed clinical diagnoses nor as epidemiologic research data.
83. In the Vietnam War, it took 21 days to evacuate a soldier from the combat theater. In Iraq, the military is routinely evacuating a soldier within 36 hours. See generally Statement of Lieutenant General Eric. B. Schoomaker, MC, Surgeon General of the Army, before the Senate Armed Services Committee, Wounded Warrior Care, February 13, 2008; Statement by the Hon. Pete Green, Secretary of the Army, before the Senate Armed Services Committee, On Care for and Treatment of Wounded Service Members, February 13, 2008.
84. Statement for the Record by The Honorable Gordon England Deputy Secretary of Defense and The Honorable Gordon Mansfield Deputy Secretary of Veterans Affairs Before the Senate Committee on Armed Services 13 February 2008 Disability Evaluation System.
85. Statement of Lieutenant General Kevin C. Kiley, MC, Surgeon General of the Army, before the House Armed Services Committee, Walter Reed Army Medical Center Outpatient Care, March 8, 2007.
86. Statement of Lieutenant General Kevin C. Kiley, MC, Surgeon General of the Army, before the House Armed Services Committee, Walter Reed Army Medical Center Outpatient Care, March 8, 2007.
87. J. H. Pendleton, Testimony Before the Subcommittee on National Security and Foreign Affairs DoD and VA: Preliminary Observations on Efforts to Improve Health Care and Disability Evaluations for Returning Service Members September 26, 2007, at 6 (GAO 07-1256T), available at http://nationalsecurity.oversight. house.gov/documents/20070926135646.pdf (last visited August 21, 2008).
88. The DoD "rates" the disability based on the severity of its impact on the member's military duties, much as the Social Security Disability system rates individuals based on their ability to pursue substantial gainful employment (see 42 U.S.C. §§401-433). If a disability is severe enough, the member is medically retired from the active service and receives a monthly pension (and other benefits) based on the percentage of disability assigned intended to compensate, in part, for the lost military career. Once separated from service, the service member must apply for care and benefits through the VA and must undergo a separate evaluation by the VA to determine the nature and scope of benefit eligibility (based on different criteria). Note that DoD disability payments are offset by VA benefit payments (i.e., they are not aggregated). Although VA disability payments are exempt from federal income tax, military disability pay is not.
89. Prepared statement of the Honorable David S. C. Chu, Under Secretary of Defense (Personnel and Readiness) Before the House Armed Services Committee Hearing on Challenges and Obstacles Wounded and Injured Service Members Face During Recovery March 8, 2007.
90. While both the [DoD] and the DVA use the Department of Veterans Affairs Schedule for Rating Disabilities, not all the general policy provisions set forth in the Rating Schedule apply to the military. Consequently, disability ratings may vary between the two. The [DoD] rates only conditions terminating the [Service member's] career. The DVA may rate all service-connected impairments. Another difference is the term of the rating. The [DoD's] ratings are permanent upon final disposition. DVA ratings may fluctuate with time, depending upon the progress of the condition. Further, the [DoD's] disability compensation is affected by years of service and basic pay; while VA compensation is a flat amount based upon the percentage rating received." Department of the Army, Information Paper: Overview of the Army Physical Disability Evaluation System, April 11, 2007; see GWOT Task Force Report, supra note 17, at 22.
91. Statement of the Honorable Gordon England Deputy Secretary of Defense Before the Senate Armed Services Committee and the Senate Veterans' Affairs Committee, April 12, 2007.
92. Id.
93. DoD disability determinations may be reviewed by the various Service Boards for Correction of Records per 10 U.S.C. § 1552(a)(1), and/or challenged in Federal Court per 28 U.S.C. § 1491 or 28 U.S.C. § 1346.
94. Medical retirees and their dependents receive lifetime retired pay, health care, commissary privileges and all the other benefits included in a military retirement based on longevity (i.e., based on 20 or more years of active service).
95. 38 C.F.R. Book C (Schedule for Rating Disabilities).
96. This dual disability rating process has led to considerable confusion and inconsistency and has obvious and serious implications for patients who risk the consequences of differing disability ratings whose elements and outcomes are geared to each agency's mission rather than the overall status and future of the individual. Receipt of a less severe disability rating from the VA can lead to the diminution of promised benefits as well as a personal sense of abandonment by the DoD. In truth, the distinctions between the two rating systems reflect their unique purposes (i.e., to measure fitness for DoD service on the one hand, and the receipt of ongoing care through the VA on the other), but the meaning of these policy and administrative distinctions tends to fall away, because they are so little understood. See Pendleton's Testimony, supra note 13, at 6.
97. Id.
98. Id.
99. Consider the stress a wounded service member faces when returning from the battlefield with an unfitting injury. First, there is the physical stress of recovering from a painful injury, often while separated from family in an unfamiliar setting. Next, there is the mental stress of the potential loss of livelihood and a chosen career field, coupled with the knowledge that once separated, military medical care eligibility ends with a transfer to the VHA - an unfamiliar medical care system - upon successful navigation of the complex bureaucracy of the competing disability evaluation systems. It is small wonder that the wounded service members and family members have voiced their frustration.
100. The DES pilot commenced November 26, 2007 and continues for one year. Under Secretary of Defense for Personnel and Readiness, Policy and Procedural Directive-Type Memorandum (DTM) for the Disability Evaluation System (DES) Pilot Program, November 21, 2007. While the VA will assess initial disability ratings during the DES Pilot Program, Military Department Secretaries will retain their authority on dispositions relating to fitness, line of duty determinations, noncompliance and existing prior-to-service findings.
101. Statement for the Record by the Hon. Gordon England, Deputy Secretary of Defense, and the Hon. Gordon Mansfield, Deputy Secretary of Veterans Affairs, Before the Senate Committee on Armed Services, February 13, 2008.
102. The disability rating awarded by the DVA Rating Board, specifically for the military unfitting medical condition(s), will serve as the basis for determining a DES Pilot participant's final disposition (separation with disability severance pay or disability retirement). The DVA Rating Board's combined disability award, for all medical conditions rated, shall be the basis for determining disability compensation payments and benefits administered by the DVA.
103. See supra note 98.
104. The Veterans Disability Benefits Commission believes that differences in the number of conditions rated between the VA and DoD accounts for the largest portion of the difference in the overall ratings by the DoD and VA. See Committee on Medical Evaluation, supra note 11.