Veterans not entitled to mental health care, U.S. lawyers

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Tuesday, February 5, 2008 (SF Chronicle)
Veterans not entitled to mental health care, U.S. 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 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."