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Tuesday, February 5, 2008

Veterans not entitled to mental health

care, US lawyers argue
Bob Egelko, Chronicle Staff Writer

Veterans have no legal right to specific types of medical care, the Bush
administration argues in a lawsuit accusing the government of illegally denying
mental health treatment to some troops returning from Iraq and Afghanistan.
The arguments, filed Wednesday in federal court in San Francisco, strike at the heart
of a lawsuit filed on behalf of veterans that claims the health care system for
returning troops provides little recourse when the government rejects their medical
claims.
The Department of Veterans Affairs is making progress in increasing its staffing and
screening veterans for combat-related stress, Justice Department lawyers said. But
their central argument is that Congress left decisions about who should get health
care, and what type of care, to the VA and not to veterans or the courts.
A federal law providing five years of care for veterans from the date of their
discharge establishes "veterans' eligibility for health care, but it does not create an
entitlement to any particular medical service," government lawyers said.
They said the law entitles veterans only to "medical care which the secretary (of
Veterans Affairs) determines is needed, and only to the extent funds ... are
available."
The argument drew a sharp retort from a lawyer for advocacy groups that sued the
government in July. The suit is a proposed class action on behalf of 320,000 to
800,000 veterans or their survivors.
"Veterans need to know in this country that the government thinks all their benefits
are mere gratuities," attorney Gordon Erspamer said. "They're saying it's completely
discretionary, that even if Congress appropriates money for veterans' health care, we
can do anything we want with it."
The issue will be joined March 7 at a hearing before U.S. District Judge Samuel Conti,
who denied the administration's request last month to dismiss the suit. While the
case is pending, the plaintiffs want Conti to order the government to provide
immediate mental health treatment for veterans who say they are thinking of killing
themselves and to spend another $60 million on health care.
The suit accuses the VA of arbitrarily denying care and benefits to wounded veterans,
of forcing them to wait months for treatment and years for benefits, and of failing to
provide fair procedures for appealing decisions against them.
The plaintiffs say that the department has a backlog of more than 600,000 disability
claims and that 120 veterans a week commit suicide.
In his Jan. 10 ruling that allowed the suit to proceed, Conti said federal law entitles
veterans to health care for a specific period after leaving the service, rejecting the
government's argument that it was required to provide only as much care as the VA's
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budget allowed in a given year. A law that President Bush signed last week extended
the period from two to five years.
In its latest filing, however, the Justice Department reiterated that Congress had
intended "to authorize, but not require, medical care for veterans."
"This court should not interfere with the political branches' design, oversight and
modification of VA programs," the government lawyers argued.
They also said the VA "is making great progress in addressing the mental health care
needs of combat veterans." Among other things, they cited a law passed in
November that required the department to establish a suicide-prevention program
that includes making mental health care available around the clock.
The VA has hired nearly 3,800 mental health professionals in the last two years and
has at least one specialist in post-traumatic stress disorder at each of its medical
centers, the government said.
Since June, government lawyers said, the VA has had a policy that all veterans who
seek or are referred for mental health care should be screened within 24 hours, that
those found to be at risk of suicide should be treated immediately, and that others
should be scheduled for full diagnosis and treatment planning within two weeks. A
new suicide-prevention hot line has been responsible for "more than 380 rescues,"
the lawyers said.
Erspamer, the plaintiffs' lawyer, was unimpressed.
"Nowhere do I see any explanation of what kind of systems they have in place that
deal with suicidal veterans," he said. "There's no excuse for not spending the money
Congress told them to spend on mental health care and leaving $60 million on the
table when people are going out and killing themselves."

E-mail Bob Egelko at begelko@sfchronicle.com