LAWMAKERS DEMAND DAMAGING SECRET VA NURSING HOME DATA BE RELEASED TO PUBLIC

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Darkness is coming to the surface for senior healthcare. In this instance it’s the Veteran’s Administration, where VA internal quality data documents that were obtained in a USA TODAY/The Boston Globe investigation reveal for the first time that VA nursing homes performed worse on average than private nursing homes on a majority of key measures, including:

  • Reported pain in the last five days
  • Received anti-psychotic medicine, which the FDA has associated with an increased risk of death in elderly dementia patients
  • Experienced marked decrease in abilities to perform daily activities like bathing, eating, and using the bathroom
  • Had a catheter left in their bladder, which can lead to urinary or blood infections and other complications
  • High-risk residents with serious bed sores, which may be prevented by repositioning/cushioning

As a result, several members of Congress have demanded that the Department of Veterans Affairs release a full complement of nursing home data that the agency has kept hidden from public scrutiny for many years.

Donovan Slack of USA TODAY and Andrea Estes of The Boston Globe write at bostonglobe.com that the VA pushed back by downplaying the contrary findings and calling the story “fake news”.

Yet to be released data includes the VA’s underlying quality data, such as rates of infection and injury. Several lawmakers have called for the release of the information immediately.

In a June 18, 2018 article at usatoday.com Slack and Estes describe one of the worst ranked VA nursing homes in the U.S., a place where American veterans are sent by family members in belief they would receive more specialized care, only to find they’ve been turned into “zombies” through the administration of too many anti-psychotic drugs accompanied by too little personal care.

The agency has tracked detailed quality statistics on its nursing homes for years but has kept them from public view, depriving veterans of potentially crucial health care information, the article says.

VA officials argued that the VA nursing home system, overall, “compares closely” with private nursing homes despite caring for typically sicker residents.

The VA’s hospitals have drawn intense criticism for repeated scandals involving health care in recent years, including preventable deaths, but the agency largely has operated its nursing homes with scant public scrutiny.

Internally the agency has long monitored care at its nursing facilities through quality indicators and unannounced inspections and, since 2016, through star rankings based on the indicators. Until now, the USA TODAY article says, it has kept all of these quality measures from the public eye.

Under federal regulations, private nursing homes are required to disclose voluminous data on the care they provide. The federal government uses the data to calculate quality measures and posts them on a federal website, along with inspection results and staffing information. The regulations do not apply to the VA. This information is not available to the public who are in the market looking for veteran’s homes.

But darkness is turning to light. The USA TODAY/The Boston Globe article quotes VA press secretary Curt Cashour as blaming the Obama administration for resisting making quality data public. “But under President Trump’s leadership,” the articles quotes Cashour from a June 12, 2018 statement,” transparency and accountability have become hallmarks of VA.”

Both the Republican-led House and Senate VA committees requested briefings from VA officials following the damning report. Transparency and accountability is what’s coming to the United States Department of Veterans Affairs, then the “fake news” won’t matter.

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U.S. VETERANS GETTING CLOSER TO ACCESSING MEDICAL MARIJUANA

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The U.S. Congress is making important if not snail-paced strides toward helping to make medical cannabis accessible to military veterans. First, Congressman Earl Blumenauer (D-OR) recently reintroduced the Veterans Equal Access Act, which would expand medical cannabis access to eligible veterans.

Secondly, on May 8, 2018, members of the House Veterans Affairs’ Committee approved H.R. 5520. This combined with S. 2796, a Senate companion legislation, that was introduced on May 7, 2018, and referred to the Senate Committee on Veterans’ Affairs, would work toward facilitating the necessary research regarding medical marijuana and its affects in treating multiple symptoms suffered by military veterans.

EXPAND VETERANS’ ACCESS

H.R. 1820 would expand medical cannabis access to eligible veterans. In its language The Veterans Equal Access Act authorizes physicians and other health care providers employed by the Department of Veterans Affairs to “provide recommendations and opinions” to veterans “who are residents of States with State marijuana programs” regarding the participation in said medical cannabis programs. The bill further authorizes the VA to complete any forms necessary to reflect such recommendations and opinions.

In further effort to reverse the VA’s decades long attitude against medical cannabis, Representative Blumenauer also filed an amendment that would forbade the VA from utilizing any of the funds derived from this bill for the purpose of prohibiting “VA providers from completing forms seeking recommendations or opinions regarding a Veteran’s participation in a State marijuana program.”

The two bills add up to major steps toward overcoming legal hurdles that have been used to outright prohibit VA doctors from making recommendations to veterans for medical marijuana use, even if compliant under state law.

The above-mentioned legislative attempts to change the law are important because the U.S. Veterans Affairs Department has a lengthy history of withholding support for medicinal cannabis access by military veterans. In October 2017, Tom Angell, writing at marijuanamoment.net, recorded how a new update to the VA’s Website had confirmed the longstanding agency policy of disallowing government physicians from helping veterans qualify for state medical cannabis programs.

“Veterans should know that federal law classifies marijuana – including all derivative products – as a Schedule One controlled substance,” Angell writes of the VA department Website page that can no longer be accessed. “This makes it illegal in the eyes of the federal government. The U.S. Department of Veterans Affairs is required to follow all federal laws including those regarding marijuana. As long as the Food and Drug Administration classifies marijuana as Schedule One VA health care providers may not recommend it or assist Veterans to obtain it.”

The FDA could take forever on that one. Angell wonders what if VA doctors were still allowed to recommend medical cannabis to veterans, even though it is considered illegal under federal law? Wouldn’t that still be a benefit to a veteran’s health if a VA doctor believed as much? And what about the fact that the above referred to VA Website page has been taken down? Might that be proof that the VA is changing their prohibitive stance against medical cannabis?

For many years the VA has thrown up major obstacles to American veterans’ safe access to medicinal cannabis as a treatment option for veterans suffering from PTSD, chronic pain, and other post-war ailments. Yet VA doctors have had no problem prescribing seriously addictive opioids that have been attributed to thousands of American deaths. It’s time for this treatment model to change. Our veterans deserve the opportunity to exercise their free will and have more equal treatment from their treating physicians who know them best, to wit their VA doctors.

What is important for the VA administrators and doctors to understand is that we are talking about “recommendations” or “opinions” of VA doctors for the use of medicinal cannabis. We are not talking about prescriptions. The law is very clear in states and nationally. No physician in the United States, whether paid by the U.S. government or in private practice, can prescribe pot to patients. It’s against the law because the prescription process is federally-regulated and cannabis currently falls under the Controlled Substances Act’s restrictive Schedule I. Schedule I drugs are those considered to have a high potential for abuse without any currently accepted medical value.

Even with marijuana’s Schedule I status, there is nothing in federal law that prevents VA from allowing its doctors to recommend or give their opinion on their patients’ usage of medicinal cannabis in the states where it is legal to do so. It’s now time for VA doctors to do so as well.

THE STUDIES MUST BE DONE

The medicinal cannabis studies have to be done, for the benefit of military veterans and the greater civilian public, and H.R. 5520 is a good place to start. This new legislation seeks to authorize and instruct the U.S. Department of Veterans Affairs to research medical marijuana for use in the treatment of post-traumatic stress disorder and chronic pain in American soldiers returning from war.

As ordered and reported by the House Committee on Veterans Affairs on May 8, 2018, H.R. 5520, The Veterans Affairs Medicinal Cannabis Research Act of 2018, would act to codify VA’s existing authority to conduct such research. On that basis, CBO estimates that implementing H.R. 5520 would cost less than $500,000 over the 2019-2023 period, primarily to prepare and submit the necessary reports to the Congress. That spending would be subject to the availability of appropriated funds.

FACILITATE MEDICAL MARIJUANA RESEARCH

The road to progress has not always been paved for success by the VA, which is another reason S. 2796, the Senate companion bill to H.R. 5520, was introduced in Senate on May 7, 2018, after which it was referred to the Senate Committee on Veterans’ Affairs. Regarding The VA Medicinal Cannabis Research Act of 2018, this bill (1) authorizes the VA to conduct and support research on the efficacy and safety of certain forms of cannabis and cannabis delivery for veterans enrolled in the VA health care system diagnosed with conditions such as chronic pain or post-traumatic stress disorder, and (2) Collected data shall be preserved in a manner that facilitates further research.

SOLUTIONS

The bottom line is the VA must act to change the internal prohibition of medical access for veterans to cannabis. Congress will have to continue to force the issue if the VA isn’t going to do anything to help veterans have access to medicinal cannabis.

House Committee on Veterans’ Affairs Chairman Phil Roe, M.D. calls the VA Medicinal Cannabis Research Act of 2018 a “pragmatic and bipartisan piece of legislation that would advance our understanding of the impacts of medicinal marijuana usage and could improve the lives of veterans and other Americans.” But it’s just a start. We need to push harder for federal government evolution on the issue of medicinal cannabis research and access for military veterans.

The government must permit VA medical providers to be able to discuss with U.S. veterans the use of cannabis for medicinal purposes and to be able to give recommendations and opinions in those states where medical marijuana laws exist.

We need to keep pushing for rescheduling of marijuana.

The VA needs to stop blocking federally-approved researchers from recruiting veterans for research on medical cannabis.

Studies must be performed regarding medicinal cannabis’ effects on veterans with PTSD issues. Such studies need to be performed and veterans must be given access to them.

DATES SERVICES RENDERED KEY TO MILITARY/CIVILIAN RETIREMENT AS SEPARATE PROPERTY

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An interesting case was recently decided regarding retirement credits involving military and civilian work.  In reversing the trial court, in this case, California’s Supreme Court held that four (4) years of additional retirement credits, which Husband was eligible for through premarital military service, are his separate property, minus the funds used to reimburse the community for funding the purchase of those credits.  The key to the court opinion in the case of In re Marriage of Green (2013) 56 Cal.4th 1130, 158 Cal.Rptr.3d) was the dates those services were rendered.

The facts of the case were determined as follows:  Prior to the parties being married, Husband served in the U.S. Air Force from July 1982 through May of 1986.  In June of 1989, he began working as a firefighter for a regional fire authority in Dublin, California.  This made him eligible to participate in CalPERS, the California Public Employees’ Retirement System, which in turn made him eligible to purchase up to four years of service credit toward his retirement benefits because of his military service.

Husband married Wife in May of 1992.  In 1997, the regional fire district Husband worked for merged with the Alameda County Fire Department, and Husband continued working for the newly created department.  He also continued his participation with CalPERS.  In August of 2002, Husband exercised his right to purchase four years of credit based on his military service, which he elected to pay through twice-monthly payroll deductions of $92.44, until July 2017.  Those deductions accrued to a total of $11,462 in community funds at the time the couple separated on October 1, 2007.

Wife filed for divorce in March of 2008.  At trial, a major issue for the court was whether it should characterize Husband’s military service credit as community property or separate property.  The trial court determined the credit to be Husband’s separate property, but it also ordered him to pay $6,699 to Wife for half of the community property payroll deductions made to purchase the credit, plus 6% interest thereon.  Wife appealed the trial court’s decision.

California’s First District Appellate Court reversed the trial court’s ruling.  It found that the service credit was community property due to the fact it had been purchased during the marriage using community funds.  The California Supreme Court granted review and reversed the First District.

In reaching its decision, the California Supreme Court considered many cases dealing with facts that differed from those in this case.  In their opinion, the justices noted that the rule to be applied to all these different legal and factual scenarios was derived from Hogoboom & King, California Practice Guide: Family Law as follows:  “Pension and retirement benefits are a form of employment compensation and thus tantamount to ‘earnings.’  As such, regardless of when the benefits ‘vest’ or are received, they are characterized in accordance with the employee’s marital status at the time the services were rendered; i.e., the benefits are community property to the extent attributable to employment during marriage.”

The key to this decision, obviously, is that retirement benefits in California are to be characterized according to the employee spouse’s marital status at the time the underlying services were rendered.

MILITARY DEPLOYMENT SHOULD NOT DEPRIVE FATHER OF CHILD CUSTODY

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An important California Appeals Court case has recently been handed down regarding the restoration of child custody rights to a father who had been sent on deployment in Afghanistan.  The case, entitled In re Marriage of E.U. and J.E, was an appeal of a post-judgment order.

According to court documents, the case concerned the parents of a child, both of whom were in the military.  In 2001, the couple decided to pursue a divorce, and the parents were awarded joint custody, although Father was awarded primary custody per the original decision of the divorce court.

However, Father was eventually deployed to Afghanistan, and Mother took primary custody of the child per the original divorce decree.  When Father returned from deployment and requested to have primary custody restored per the original divorce decree, mother disagreed.  A court-appointed doctor decided that the child would be better suited by finishing the school year with Mother.

The appellate court decided the doctor should never have been appointed and that primary custody should revert to Father.  During this legal battle, the California Legislature passed a statue that provided for the return of primary custody to parents who are ordered to go on deployment.

PURCHASE OF MILITARY SERVICE CREDITS DEEMED COMMUNITY PROPERTY

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In a very recent case handed down, entitled IRMO Green (2012)__Cal.App.4th__(CA 1/4 –Opinion filed May 16, 2012, a California appeals court decided that a husband’s use of community funds during the marriage to purchase military service credit in CalPERS makes the service credit community property even though husband’s military service was completed before the parties married.

In the case, Husband served in the U.S. Air Force for four years ending in 1986.  In 1989, Husband began working as a firefighter in Dublin.  The department was a participant in CalPERS.  Husband then married wife in 1992.

In 2002, Husband exercised his right to buy four years of PERS service credits for his military service.  Husband elected to pay for credits through monthly installment payments over fifteen (15) years.   $11,462 was spend in community earnings to purchase the military credits prior to the parties separating in 2007.

The parties litigated the issue regarding how to characterize Husband’s military service credit.  Husband contended that because his right to purchase military service credit arose prior to the parties’ marriage, all four years of the credit were his separate property.  He acknowledged that the money used to pay for the purchase before the parties’ separation was community property but contended the community was entitled to nothing more than reimbursement.

Wife argued the military service credits were community property and urged the court to place them in a separate account for her benefit through PERS.  A court-appointed expert proposed awarding a pro rata share of the purchased service credit to Wife, representing the percentage of payments toward the military service credit made with community funds.

The family law trial court concluded that the military service credit portion of the CalPERS pension was Husband’s separate property and awarded it to him.  Husband was ordered to pay Wife $6,699.54, which represented half of the installment payments made with community funds during the marriage plus interest at six percent.  Wife appealed, and the trial court decision was reversed.

COMMUNITY PROPERTY INTEREST IN MILITARY SERVICE CREDIT

The appellate court agreed that it was error for the trial court to characterize Husband’s military serviced credit as separate property.  The appellate court stated that in determining whether the community has an interest in pension rights, courts look to when a party acquired a property interest in them.  In other words, when did the pension right become more than an “expectancy”?

Although Husband completed his military service before his marriage to Wife, when he left the military he had no property interest whatsoever in the CalPERS retirement plan because he did not begin working for the CalPERS participant until three years later.  Even after Husband started working for a CalPERS participant, his right to a military service credit was simply an “expectancy”.

The appellate court determined that the military service credit was indisputably purchased during the marriage with community funds.  Thus, the contractual right to receive four additional years of retirement credit based on premarital military service was obtained during the marriage and it was stamped a community asset from then on.

MILITARY HOUSING AND FOOD TO BE CONSIDERED FOR SUPPORT

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In a case of first impression California’s Fourth District Court of Appeal has held that military housing and food allowances are to be taken into consideration when calculating child and spousal support.  In the case, entitled In re Marriage of Stanton 190 Cal.App.4th 547 (4th Dist., Div. 1 Nov. 24, 2010), the court held this to be true even though such allowances are neither taxable nor subject to wage garnishment.

The facts of the case are as follows:

Husband Soloman Stanton had sought to reduce his temporary child support and spousal support orders to his wife, Carol.  Upon divorce, the court had ordered Soloman to pay his wife temporary support for both her and their son.  Soloman was a member of the United States Navy, and, at the time, the court had calculated the amount of support based in part on Soloman’s military allowances for housing and food.

In his request for a reduction, Soloman had argued that because federal law exempts a military allowance from federal tax and wage garnishment, the court had violated the federal preemption doctrine by including his allowances in its calculation.  Under the federal preemption doctrine, Congress can preempt state laws.

However, after the hearing, the San Diego County Superior Court denied Soloman’s request for a reduction.  The Court of Appeal affirmed the trial courts decision.  It held that the federal preemption doctrine does not prohibit the inclusion of a military allowance when calculating either child support or spousal support.  The court opined that the doctrine is inapplicable to family law unless Congress’s intent is clearly contrary to state law.

The Court of Appeal further determined that Congress had not intended for a military allowance to be excluded from child support or spousal support.  In conclusion, the court stated that “the nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support.”

CUSTODY AND VISITATION WITHIN THE MILITARY

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With America’s war machine seemingly leaving no stones (or countries unturned), we’ve seen a sharp rise in foreign deployments among military service members, especially Reservists.  This has led to much strain on military family ties.  All branches of the armed services have experienced sharp spikes in divorce rates, which since 2000 have risen nearly 40%.  And of course the main sufferers have been the children of the military who are subject to the military laws covering custody and visitation.

Factually, women military members divorce their spouses at more than double the rate of their male counterparts.  When it comes to single parents in the armed forces, the predominant arrangement has been for secondary custody – access or visitation rights – not primary physical custody.  Based on Defense Department regulations, first-term single enlisted parents cannot have custody of a minor child.  So watch out what you wish for if you decide you want to fight for the stars and stripes, while trying to raise a family, and keep it in one piece.

Peace and Blessings!