New VA Gaming Strategies Memo is Potential Roadmap to Sue VA

VA Gaming Strategies Memo

The new Veterans Affairs memo the American Legion published last week is hugely valuable for Federal Tort Claims Act litigants. It serves as a potential roadmap to sue VA for delays in care related to wait list manipulations.

Let me explain the roadmap metaphor here to connect the dots on this one.

The memo contains specific details of the “gaming strategies” VA employees uses to scam veterans out of appointments. It could provide Veterans Law attorneys with a roadmap on how VA employees were failing to treat veterans in a timely manner. Any attorney worth their salt will be able to reverse engineer the conduct highlighted in the memo with the harm suffered by their client. Major bodies of law, like the Federal Tort Claims Act (FTCA), will be implicated. The memo could help your attorney connect the dots between your harm and actions taken by VA employees, like a roadmap.

FTCA was created by Congress. It provides a limited waiver to the immunity of the sovereign by allowing people to sue the federal government under a limited set of circumstances. It allows people to sue in circumstances where a private individual would be liable if they committed the same act. It would include medical malpractice and other forms of negligence.

Now that I have covered the metaphor, here is why the memo was shocking.

The American Legion reports that a Department of Veterans Affairs memorandum written four years ago warned that “inappropriate scheduling practices” were being used at some VA medical facilities “in order to improve scores on assorted access measures.”

The VA memo, dated April 26, 2010, was written by William Schoenhard, who then served as VA’s deputy under secretary for health operations and management. The nine-page memo lists several specific scheduling practices to avoid, called “gaming strategies”.

Legion’s VA memo is significant for two reasons.

First, the memo is significant because it details how VA employees were gaming the system and states that VA management did know. As previously mentioned, this is of importance to veterans and their attorneys suing VA for harm under the FTCA for negligence. An FTCA attorney could use it as a roadmap or guide to understanding potential strategies VA used that could have harmed a veteran through delayed care.

The most damning VA method was canceling appointments if the veteran was not 15 minutes earlier. “Patients are informed that is is medical center policy that they much check in early and if they fail to do so, it is in the medical center’s right to cancel that appointment.” This is clearly a policy created by an people who believe VA is there to serve its employees and not the veterans needing care. The memo concluded, “This is not patient centered care.”

Veterans may be harmed by not receiving timely care. If that failure resulted in harm, a person may have grounds for a negligence claim against VA. For example, under FTCA, you could look at “Delay in Treatment”, “Failure to conform with Regulation, Statute or Rule”, or “Improper Management”.

Second, the memo is also significant because it illustrates that no matter how many new policies come out, that bureaucrats will always figure out ways around the system to reach incentive bonuses. So long as incentive bonuses exist in the federal government in their current form, we will always have bureaucrats gaming the system.

On this subject, the memo states,

“Please be cautioned that since 2008, additional new or modified gaming strategies may have emerged, so do not consider this list a full description of all current possibilities of inappropriate scheduling practices that need to be addressed. These practices will not be tolerated.”

In its article on the memo, the Legion missed the mark a little. The veteran organization intended the memo to merely highlight the date VA knew about the problem and eluded to the problem’s scope as support in its article, VA memo warned of ‘gaming strategies’. Again, this memo is awesome for showing the scope of the problem, but not as an initial indicate of when the problem started.

Before Legion published the memo, we already knew that VA was aware of the problem here on for a decade. Last week, I covered the issue twice with memos from 2008 and later with a memo from 2002 (check out, Is fixing the VA Wait List like boxing a Glacier?). We know VA has struggled with this issue as early as 2002, according to page 1 of the VA Electronic Wait List Manual, initially published that year.

What we did not know were some of the specific ways VA employees were gaming the system. Now we know.

If you believe you were harmed by VA by a wait list gaming strategy, you may want to contact an attorney right away.

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  1. Ben, I happened to know one big fact, that is called manipulating a medical record and claiming questions answered, but never asked, an ER doctor who brought in her male yes the doctor is right, but, can he or she? NO. My record specifically states, “no men, patient must be asked first.” But, another blunder of hers too. I am reading this story, it is called my “medical record.” And yes, damn straight up, wish to sue. Delayed care, not listening to me, the patient, may have already created damage that cannot be fixed. So, I wonder, “if I end up in a scooter ( use to joke, not funny now) will I have to buy scooter insurance?” Bad business the VA. At this point, do you think I want my body operated on by them if required ? As the news has hit, my “obsession over illegal entries” my partner stated to stop. Nope. But when the Dallas VA hit the news? Now he gets it.


  3. You’re doing a great job, Ben. Keep up the good fight for the veterans – I get better and more reliable VA news from you than from anywhere else.

  4. what about the gaming system when it comes to claims or appeal, how many died waiting in those cases. I have a friend who I served with in the army who told me on female veteran he knew received a letter from the VA that she was 100% service connected and yet she died the day before. this seems to be a major problem as well but all we hear is about the waiting list. we need to start talking about the claims system being gamed for the sake of a bonus and if the VA didn’t have that then we would not have problems like we do today, its all about money and not the veterans anymore.

    1. ^+1000
      I left a detailed post about *JUST THAT* on today’s MMQB thread on this forum, as I believe it’s ALL connected and there’s no reason the Disability Claims process should be excluded from the “gaming the system” topic. Please read my post for more insight with my experience and totally useless, self-serving VSO’s.

      1. Here’s my post, as it’s totally relevant:

        I seriously think that along with the current “Wait Lists Scandal” in the forefront, the subject of Veteran’s Disability Benefits waiting game and VA’s horrific wait/delay/deny game and runaround strategy should *ALSO* be front and center because they indeed go hand-in-hand. This current matter in news is indeed an atrocity and am in no way minimizing it. However, it could also be the VA’s strategy to use this very issue as a “smoke screen” to make the Veteran’s Disability Benefits atrocious process for Veterans seem “swept under the radar”….again!
        Why not hit them with the full pile of crap rather than a spoonful at a time? These VSO’s are VERY MUCH part of the whole delay and deny game of under the guise of “helping Veterans”, they in-fact act as a liaison that creates a further divide between the Veteran and their legitimate claims and the VA.
        I’ll never forget when I was told to NOT contact my Congressman because it would only “delay things further”, when in-fact at least in my particular case, placed a fire under the VA and my Congressman’s involvement in lieu of VSO exponentially sped-up process and must add that I had all the documentation and did ALL the work that the VSO was “supposed to do”. Otherwise I have no reason to believe otherwise that now, 4 years later, my claim would more than likely still be sitting or lost somewhere between the VSO and VA Regional Office.
        I seriously think the Disability Benefits “WAIT GAME” should be brought again to front and center WHILE this is in the main stream media because Pres. Obama and Sec. Shinseki are NOT doing what they are telling the public they are doing.

        In closing, it’s always important to use critical thinking and ask yourself, “what are they NOT talking about?”

    2. Well, here is what “I Do Know.” There seems to be an outside group who will be sending letters to Veterans across the country. It will be check to box answers, BUT, add any additional information you feel pertinent regarding care, staff and verbal abuse, lying when documenting, just FYI my doctor has a copy of the ER Doctors plunder of ignorance regarding a shot. ( it won’t work in 15-20minutes, given in the muscle at least an hour, never normal am I) The pain is severe, as my BP tells it all and the VA chase away nurse, I say, bedpan duty, just take more of those. Not legal. Do not trust your reps, your VSO’s or even the Patient Advocate, they are VA paid.) my record reads like a wanna be writer, not all the characters added are my story. And repeatedly, since back injury claimed denied, yes, chronic pain, these are new issues. All I wanted was the “right doctors to order the correct tests.” Not drugs. You can keep doing the same tests, but it won’t look like the “truth within.” Just FYI, take a witness, sanitizing records, common practice, seriously it IS. Get copies of all records, and the Waco Regional Office is on notice. Don’t push me, I do shove back. Debate me? Pick a topic. Argumentative? Learn “statement & arguing.” You shan’t not win arguing with me. 3 children, a spouse, don’t believe enough “duct tape” exist. My Motto? “DON’t tread on me.” ( and yes, I do mean that, because like a tiger lays low in tall grass blending in, I wait, and can longer than they will ever know!) What I do know? I shall pass the buck to Ben, but really wish for ANYONE willing to provide “CUT THROAT ATTORNEYS WHO BRING THEIR TRIPLE A GAME IN OR AROUND DALLAS-BEST RECOURSE MAYBE A CLASS ACTION, ( TOSS UP?) Call me hell raiser, rebel without a pause, California Please, I have brains, few here do., not insulting those I don’t know, but ones met. My nightmare? I can no longer walk, nor sit, extremely painful, cat naps if lucky, but to never see my granddaughter? Now what is a price to no longer enjoy her? Ben Franklin said it best; ” We have given the people a country, it will be yo to them to keep it.” Take back commences! Good luck, I truly care for more than myself, if it took me 32 years to have a door unlocked, how long do you think one out of war, stock piles guns, and one day their door unlocks too.


  5. I have tried many times in the past to find an attorney to sue the VA, on contingency due to my limited VA comp income. Is there a trick to finding such an attorney? I gave up a long time ago on finding one.

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