VA Handcuffs Veterans Law Attorneys
VA is handcuffing veterans law attorneys be refusing them access to the paperless system unless they first sign a VA contractor agreement that waives privacy.
Failure to sign the agreement, called Rules of Behavior for VA Contractors, prevents the attorney from accessing VA’s new electronic database called VBMS. Since the agency is going paperless, this restriction is causing problems for veterans seeking skilled representation from attorneys.
RELATED: VA Contractor Rules of Behavior Agreement
Ever wonder why it is sometimes hard to find veterans law attorneys when you need one? It is because Veterans Affairs (VA) has handcuffed attorneys every step of the way for years, and this current move is on par with others in the past.
For starters, an attorney could only charge a $10 fee to help a veteran since around the Civil War for the next 120 years. Now that we have been making headway after the law change, VA has again come up with this new whopper.
The new Rules of Behavior agreements for VA contractors waive privacy for anyone who signs the document. VA drafted them strictly for VA contractors who waive privacy and consent to searches of associated computer systems whenever VA wants. This makes sense for VA contractors, but not attorneys representing veterans against the agency.
Here are some examples from the agreement I was recently sent and refused to sign:
“I understand and agree that I have no reasonable expectation of privacy in accessing or using any VA, or other Federal Government information systems.”
“I consent to reviews and actions by the Office of Information & Technology (OI&T) staff designated and authorized by the VA Chief Information Officer (CIO) and to the VA OIG regarding my access to and use of any information assets or resources associated with my performance of services under the contract terms with the VA.”
“These actions may include monitoring, recording, copying, inspecting, restricting access, blocking, tracking, and disclosing to all authorized OI&T, VA, and law enforcement personnel as directed by the VA CIO without my prior consent or notification.”
Would you ever want to hire an attorney who is forced to waive consent against the opposing party? Would you want your attorney to allow monitoring, copying and recording of what they are doing by that opposing party of their representation of you?
Here’s the deal.
VA contractors have a fiduciary responsibility to the agency, which makes sense for any VA contractor. But as an attorney representing veterans against the agency, such an agreement creates a conflict of interest.
I tried to explain this to VA leadership, but they do not seem to comprehend the difference between a VA contractor, a VSO and an attorney. I pushed back on the matter and refused to sign because I am not a VA contractor. But the VA concluded that the agreements are sufficient for all stakeholders because veteran organizations were willing to sign them.
A VA chief information officer at a regional office recently emailed me about this:
“We will require the signed Rules of Behavior before a background check can be conducted, as well. Please noted, as we discussed during a phone conversation, the term “contractor” entails stakeholders, such as VSOs, CVSOs, not just federal contractors.”
Here is what the CIO is missing. Attorneys are not the same as veteran service officers (VSOs) and their respective organizations. First of all, I went to law school for three years and have an undergraduate degree. Plus, I follow ethics rules about confidentiality and conflicts of interest.
A veteran does not have the same expectation of privacy or confidentiality with a VSO or CVSO. Think about it, most VSOs use VA emails and VA phone lines.
Do you think VA has the ability to monitor these whenever they want? Are your communications with a VSO or CVSO confidential? Further, VSOs hold themselves out as having a duty to both VA and the veteran. Following the example of VSOs would put me in breach of my basic ethics requirements.
Now that VA is moving to its new paperless model, this prohibition creates an obvious problem. Unfortunately, an attorney’s failure to sign prevents him or her from accessing a client’s files in a timely manner. How can you represent a veteran without seeing their file?
In short, the required agreement potentially destroys attorney-client privilege and as such would be unethical for any veterans law attorney to agree to in some states if not all states.
Despite being informed, the agency turned aside concerns even though the requirement harms a veteran’s ability to hire an attorney. I filed a Notice of Disagreement with the agency about the move since I believe the requirement is unlawful and will keep you updated on what happens.
Now don’t get the wrong impression that things are going totally sideways for me. VA Vocational Rehabilitation just funded accommodative equipment and software for my law firm making Krause Law, PLLC the first Veterans Benefits Law Firm to receive VA funding. It was not without a fight, but I won and plan to write about it for tomorrow’s post in a press release.
In the mean time, you need to speak out against the move to keep attorneys out of the VMBS platform using questionable contractor rules of behavior agreements. Do you think VA wants attorneys helping veterans? With their legions of attorneys, why is VA so slow to draft an agreement for attorneys representing veterans?
Wouldn’t it be possible for the veteran to gain disclosure of his records? In UK this would be covered by our data protection act, I’m not sure what rights US citizens have to personal information.
a little off topic but goes along with VA hand-cuffing …
[ Investigator: Veterans Affairs whistle-blower cases remain ‘overwhelming’ ]
https://bit.ly/1NIKOCC
as i mentioned in another post, by far, more VA whistle-blowers are being squashed than say, any VA management types being fired (held accountable). seems in general, no one in our current gov can be fired. unless it’s the proverbial low-hanging-fruit dispensable for an under-the-bus toss. but a whistle-blower can get canned, the veteran can and does get his/her words twisted and hard coded into their “hidden” med-files to their detriment to be nefariously used against the veteran at some point. i may have worded that scenario incorrectly but i suspect many a veteran knows exactly what i’m saying.
the current investigative reports across the land, are all reporting not much has changed at VA since last year and in some cases have gotten worse. yet look at all that $$$$ handed to VA. wasn’t the $$$$ supposed to be the golden answer to the ills of the VA problems?
wonder how many Congressional members are on the same “golf-team” as their local VA/VARO? you know, the Congressional members who say, “we are investigating VA claims delays, etc., “we contacted VARO officials and they promised they will do better”, etc. we all have heard and read, in general, such statements from Congressional officials from each state, BUT, from the veteran’s point of view and his/her legal reps, not a darn thing has really changed. one or two VARO managers moved around but only after the bonfire of public outcry in some states. i wrote, “his/her legal reps”, because frankly, so many VSO orgs of late almost seem to be in conflict of interest in whether they are serving the veteran or the VA. that is, many veterans have had to turn to legal representation to fight for them against the VA versus relying on VSO orgs as we used to in the past.
i read recently that many VARO’s don’t even return calls & requests from many Congress members.
Ben, why not have a wall of shame listing all states’ VARO and those respective state’s Congressional reps and grade them on if they are all talk or walk-the-talk regarding reigning in VA/VARO? some of the good Congressional people are getting jerked around by VA/VARO too. it isn’t just the veterans. i think those Congressional reps can use this kind of publicity-help. and for bad ones, say those on the VA “golf-team”, you know those who say what sounds good for print and sound-bites but in reality are not doing a darn thing to correct the negative issues at VA/VARO because frankly, they are playing golf with the VA, so to speak.
when election time comes around a list like that can be educational for the public and veterans.
Is there a way to actually file a Federal Lawsuit regarding their end run around Attorney Client privilege? It is a basic tenet of law, and no matter how big and powerful the VA sees itself, it is NOT above the law.
So, as DO AS THEY DO, maybe vets need someone with them when they go to any vet medical visit. AND a tape recorder just like they have(they don’t tell you about, the egregious & illegal sub rosa while you’re there, hence the deposition look alike medical reports that are full of massive intended errors)) THAT.ANY thing related to giving out any benefit, including medical care is about costing money & the one thing I learned IS THAT,when they have to spend one red cent(benefits are insurance which =’s money), that this is all as devious as it gets, hiding data to delay or deny any benefit while doing any/all sub rosa and that s done via a paperless vehicle such as the internet with no regs or laws attached, meaning no one held accountable via paperless data… Omissions are a fraud, so one has to protect themselves more so now then ever, even vets attorneys. You all need to fight this…. If you don’t then the nuts win.
THE devious & insane insurance connected employees in the DOD.VA are no different than in workers comp for civilians, BUT they get paid by the taxpayers & PROTECTED BY VERY POWERFUL UNIONS.. There oughta be a law….Right?… VETS & WORKERS HAVE NO RIGHTS. it sure looks that way anymore.
OUR CIVIL rights are being violated left & right & where are our legislators who okay’ed this massive wrong? Who rigged all of this, why, it’s the DOD with other federal agencies, all in this for themselves, only.
Our vets deserve a whole lot more than this BY those who want a U.S.A.
A-1 military!
Chief Information Officer? The VA’s computers are NEVER working: he’s an idiot.
Sue them if they are relying on the CIO’s logic alone. That is stupid. This is Tea Party bullying tactics. Why in the hell can’t a lawyer sue their ass on this?
Well, Hillary just used the mobile pc she dumps every night. I guess it will work in this situation as well.
yeah. The state of the VA MIS dept. can easily be googled, and I’ve read it’s really BAD. No one is in leadership, employees don’t care or know anything and are in low moral, and on and on and on. The VA should be called “The on and on and on” as a matter of fact. It doesn’t look like it’s in the cards where they will straighten out ever. Furthermore, the average citizen just doesn’t know and just doesn’t care as they don’t want to be bothered with their (VAs) jack-ass-olia. It is a fast-sinking ship. I don’t think any of the forthcoming presidential candidates will address this very well, either. They are all owned by certain corporations that tells them “what”. We live in a make-believe country with make-believe people who have make-believe answers. They dig control, and will kill your ass to have it.
Interesting. I just read another news article about how VA managers rifle through the medical records of whistleblowers to dig up information to use to discredit them.
Imagine, Ben, you representing another vet and the VA rifling through your records to smear you if possible.
It reminds me of an exam I had many years ago at the VA. The tech conducting the test casually engaged in conversation without any medical notes or other things an examiner uses to document what a patient says. I was shocked to learn he later wrote everything down in my patient record, including things that were not relevant to the exam, and which I never would have told him had I knew he would be doing so. It was incredibly shoddy and unethical what he did…as if he sat in a patient waiting room pretending to be a vet, overhearing what two other vets said and documenting everything in their patient records as if a regular exam had been done.
If I would have known then what I know now I would have gone after the dishonest Bastard with any administrative remedy I could use. I have been extremely careful of anything I say in front of any VA employee since then. I don’t trust any of them as far as I could throw them.
Isn’t going through someone’s medical records without their expressed permission a violation of Federal Health Insurance Portability and Accountability Act of 1996. (HIPAA) LAWS? And wouldn’t that be a felony that should get the perpetrator fired, fined and/or put in prison? You better believe that if I found that some bastard had gone through my medical records without my permission, I would not hesitate for a moment to call federal authorities
You are normally correct, but this is the VA and they may have an exemption. I have personal experience with the VA giving my personal information to a private VA contractor so they could search for, find and bill my private health insurance for treatment of a service connected condition without my authorization. When I raised hell about it, the VA claimed I signed a form informing me they could do this, but they could not produce the form when I submitted a FOIA for it. I knew they couldn’t because I knew I never signed it. They also said Congress gave them the authority to use contractors to do that. I have been fighting with them since last year to get those bills reimbursed, but they still have not done all yet. They then send a letter that seems threatening about a required annual checkup, which my insurance was also billed for, and I was examined by an incompetent Nurse Practioner who falsified my records.
Seems to me that the VA has become almost as omnipotent as Monsanto
Attorney Client Privilege has been held to be a legal concept by the Supreme Court in many cases. Now the VA is in effect, wiping out all those rules with their new rules. Isn’t what they’re attempting to get attorneys to do a felony?
VA DEATHCARE WITH DEATH PANELS TO KILL VETS FOR THE BONOUS $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
The VA knows that this is not an election year and so they can move ahead with whatever scheme comes to mind to block the veterans. I would like to know where did the extra 12 billion dollars go to improve the VA?
Ben, while I have had my share of problems with the VA and release of information, I am wondering why the veteran (your client) cannot just get all of the information that you need, scan it, and give it to you in electronic format. Would an attorney representing a veteran need information not readily available to a veteran? If so, I would like to know what that information is – I have had had many battles with the VA, and although I have won most, they are certainly time consuming and I would be happy to test them again.
The Veteran will not have access to the same VBMS database. Further, it is difficult to impossible to move data from the web portal to your private computer. Last, for claims not disability related such as fiduciary or debt management or fee basis related, real time information is needed. You can get all the information via a FOIA / PA request whenever VA provides the data, but that process may take too long.
Ben it is a read only way to see the files. I have not been able to print them yet. It might be I just have not learned how yet.
The way I read their proposal is that an attorney representing a veteran would have to give the VA unrestricted access to their computer system. So they would have access to not only the veteran’s information, but to every other client’s information as well. Wouldn’t that be a violation of the federal Privacy act of 1976 and potentially of HIPAA laws as well. So, isn’t the VA soliciting attorneys that represent veterans to commit felonies?
Seeing how the VA is writing their own rules of the law is not time to get the Supreme Court of the United States involved? What do we the veterans have to lose?
I’m wondering right now just how this is going to affect the National Veterans Legal Service Program (NVLSP) ?? Can anybody guess?
Why should the VA be different than other Federal Agencies? Unethical, even illegal behavior is rampant in the government. Onerous rules, regulations and policies, which become more intrusive almost on a daily basis are what keeps the bureaucrats employed. These people have one, and only one, mission and that is to perpetuate the bureaucracy. If it is a real, real onerous rule, policy or regulation, some brave souls will file a suit, which will take years and if they are successful, the only relief can be the finding that the rule, reg or policy can no longer be enforced.
There are a diminishing number of Davids willing, or able to fight Goliath.
Tear it down. The whole VA. It is the only way to stop these lying bureaucrats from adding never-ending, non-veteran friendly, unconstitutional regulations. It will also solve the problem of the unhelpful VSOs.
The VA keeps finding ways to control us vets into doing what they want and this shows that they will do what they want to help them and to hurt us. It seemed as if we were learning that the VA can and does get sued more often (more than I thought) for their actions and after this was becoming more and more evident, the VA is now making sure that will not happen anymore.
My theory on this? The VA is ENSURING they retain their good old bedfellow relationships with the usual Veteran Groups such as DAV, et al, because the “very telling statement” the VA is using to support their draconian measures by simply stating: “But the VA concluded that the agreements are sufficient for all stakeholders because veteran organizations were willing to sign them.”
We all know that all the typical lamprey VSO’s are entirely codependent on the VA, funding from the VA (and membership fees…but expect said VSO’s allegiance to be with the VA firstly…just follow the $$), thus said “Veteran Groups” are something else ENTIRELY because their heads are so far up the rears of the VA, that the “Veteran part of that gets lost entirely as their priority”, and I propose that the VA is extending their “exaggerated definition of contractor” in order to FORCE VETERANS TO USE established VSO’s rather than ANY private attorney.
The VA has indeed created an unethical and AGAIN, **adversarial environment** that specifically ties the hands of Veterans seeking legal assistance outside of the VA’s **all prying eyes** by projecting a label onto ANY attorney wishing to represent THE VETERAN (not the VA) as a CONTRACTOR now. WTF does our new VA Secretary have to say about this? Did the VA pull this out of their own collective asses and create their VERY OWN amended stipulations without any oversight from Congress?
This not only is a definition of “Conflict of Interest”, but also injects steroids into the FOX GUARDING THE HENHOUSE and gives the VAOIG and the VA **way too much power**, making a JOKE of any “Attorney/Client(Veteran) Privilege”, by actually sort of vilifying ANY private attorney by essentially establishing an “US and Them” environment, with the “US” being the all-too-cozy-relationship the VA has with the usual VSO’s and tying the hands or outright curtailing the ability of Veteran Tort Claims/Class Actions against the VA and I think they have done this out of a knee-jerk-reaction to the continual VA Scandals rather than any attempt of the VA to actually clean-up their act.
This would/does make a TOTAL JOKE out of any future Depositions and Discovery, because at ANY TIME they VA can have their eyes on EVERYTHING the Veteran’s Attorney may be filing…giving the VA a heads-up to Deny, Lie, and hope the Veteran eventually Dies, not to mention the VA’s ability to manipulate electronic data or say a case is really solid against the VA, the VA could simply throw a huge cog into process at ANY TIME by ceasing all attorney hard drives, etc. Draconian and Adversarial are the only words that can describe this new “tying hands of legal representation of Vets”.
The VA is acting only in their best interest, THE ADMINISTRATION, just forget about the first word of the organization, VETERAN.
Something tells me when you dig deeper you may find that the usual VSO’s/Groups probably were the architects in tangent with the VA that created these new rules and Ben, I will be contacting my State’s Congressional Representatives about this and encourage ALL Veterans to do the same in your respective States. This is so not right.
I am not so much a fan of these electronic records conversion and requirement because it now will become even easier for the VA to manipulate and SCRUB a Veteran’s file and to magically LOSE data. Bastards!
Again, I would LOVE to see Secretary McDonald asked on Main Stream Media as well as under oath by Congressional Oversight Committees of exactly HOW this is any benefit to any Veteran filing a claim and how they can bastardize the definition of Attorney/Client Privilege?
That kind of screws it for anybody that is having issues with the VA and especially any VSOs that are more on the VA’s side than ours. I am wondering where we find help now. It feels like the system is unraveling rapidly and the higher ups are scrambling to save their butts.
I am serious though. I don’t know where to turn now. I just now am trying to recruit somebody from the DAV to help advocate for me but I am not sure that is going to happen since they too probably serve the VA more than vets even though we support their mission.
Got any advise?
Thanks, Bruce Schaefer
Know thy rules and know how to be ten steps ahead of the VA silly Games. Also know a big fish caught and the rules of engagement definitely changed. You can say, “crazy?” But I can say very clearly and with my knowledge, I am not the one who lied in the games these people so do like to play Ben. Do I fear confrontation? Think on that little bit of information. I wish them all the luck in the world, but it still will not ever be going to be enough so maybe put them all in a different universe! ( metaphors word plays and riddles? Gee not so average am I now as stated regarding my IQ) “I can hardly wait!”
:-O poor them! ( but not at all)
If you allow it it will stay. Cause as much chaos as possible to include your clients and it will o away.