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Veteran Victory Over AbilityOne On Pause

On September 1, 2017, the U.S. Court of Federal Claims (“CoFC”) granted an AbilityOne vendor’s request to stay the relief granted in a landmark case confirming that veteran-owned businesses take priority over AbilityOne vendors at the U.S. Department of Veterans Affairs (“VA”). As such, the VA may not procure eyewear products or services in VISNs 2 or 7 outside of the AbilityOne Procurement List until the appeal is resolved. (PDS Consultants, Inc. v. U.S., No. 16-1063C).

As many veteran-owned businesses competing in federal space are aware, a recent CoFC decision issued on June 30, 2017 held that at the VA, veteran-owned small businesses (“VOSBs”) and service-disabled veteran-owned small businesses (“SDVOSBs”) trump AbilityOne vendors (employers of those who are blind or have other significant disabilities). Even if a product or service is on the AbilityOne Procurement list, the “Rule of Two” (i.e., that the VA must set aside the procurement for VOSBs or SDVOSBs when a contracting officer had a reasonable expectation that he will receive offers from two or more qualified VOSBs at fair market prices) still applies.

In the case at issue, the VA had decided to procure eyewear products and services from an AbilityOne nonprofit for four Veterans Integrated Service Networks (“VISNs”) without performing a Rule of Two analysis. Eyewear products and services for VISNs 2 and 7 were added to the AbilityOne Procurement List before 2010. VISNs 6 and 8 were added to the AbilityOne Procurement List after 2010. In its protest PDS, a SDVOSB, argued based on the plain language of the Veteran Benefits Act (“VBA”) and the broad reading to the language of the VBA given by the Supreme Court in Kingdomware, that the VA’s decision to continue to enter into new purchasing agreements for eyewear products and services with AbilityOne nonprofits for VISNs 2, 6, 7 and 8 before performing a Rule of Two analysis was inconsistent with the VA’s obligations under the VBA. PDS argued in its bid protest that before the VA could continue to procure eyewear products and services through new agreements with AbilityOne nonprofits for VISNs 2, 6, 7 and 8, the VA had to first apply the Rule of Two to see if the opportunity should be a VOSB/SDVOSB set-aside.

The court entered judgment in favor of PDS and denied the government and the AbilityOne contractor’s (Wilson-Salem Industries for the Blind, Inc., DBA “IFB”) motion for judgment upon the administrative record on June 30, 2017. Before fashioning injunctive relief, the court learned that a bridge contract with IFB for VISN 2 was set to expire on September 30, 2017 and that the Blanket Purchase Agreement with IFB for VISN 7 would expire in July 2017, but that there were several option periods available under the agreement with IFB for VISN 7. In its judgment, the CoFC stated that the VA would be required to perform a Rule of Two analysis with regard to VISN 2 before the bridge contract with IFB expired on September 30, 2017. With regard to VISN 7, the court determined that the VA would be required to perform a Rule of Two analysis before December 2017, and, if the Rule of Two is satisfied, award a contract before January 31, 2018.

With a reported 52 jobs and $15.4 million in avenue revenue on the line, IFB filed an appeal before the U.S. Appeals Court of the Federal Circuit on July 31, 2017. It then asked the CoFC to stay its decision, meaning that the VA may not procure eyewear products or services in VISN 2 or 7 outside of the AbilityOne Procurement List until the appeal is resolved. As this motion was granted on September 1, this means that so long as the appeal is up in the air, IFB’s jobs and revenue from the contracts at issue are protected. Also, the VA may extend its contract as permissible under option years.

It’s as if PDS has won an Olympic medal but doesn’t yet get the glory because a competitor cried foul. Until the referees are done recalculating and reevaluating, second place keeps the trophy cup for now.

For further updates on this case, stay tuned to this blog. If you’re not signed up, you can do so at http://www.legalmeetspractical.com. Please check the link sent to your email to activate your subscription!

 

VOSB Need-to-Know News

Last week, I had the pleasure of presenting at the National Veteran Small Business Coalition’s annual conference in Norfolk, Virginia. For those of you not familiar with the Coalition, and especially if you’re in the northern Virginia area, consider looking into the conference – every year, it provides an opportunity for veteran business owners to network with prospective teaming partners and procurement officials.

Because I’ve been busy with conference preparations, I’ve missed a blog or two. Accordingly, in a nutshell, here are a few major items of veteran business news you should know:

It’s (Court) Official: SDVOSBs Trump AbilityOne at VA! According to the U.S. Court of Federal Claims, The VA cannot buy products or services using the AbilityOne List without first applying the “rule of two” and determining whether qualified SDVOSBs and VOSBs are available to bid. In other words, SDVOSBs take precedence over those on the AbilityOne List.

The Court’s decision involved an apparent conflict between two statutes: the Javits-Wagner-O’Day Act, or JWOD, and the Veterans Benefits, Health Care, and Information Technology Act of 2006, or VBA. The VBA states that (with very limited exceptions), the VA must procure goods and services from SDVOSBs and VOSBs when the contracting officer has a reasonable expectation of receiving offers from two or more qualified veteran-owned companies at fair market prices.  The JWOD predates the VBA and provides that government agencies, including the VA, must purpose certain products and services from designated non-profits that employ blind and otherwise severely disabled people (on the “AbilityOne List”).  While after Kingdomware, there was confusion as to which statute took preference – JWOD or VBA – a bid protest filed by SDVOSB contractor, PDS Consultants, Inc., has finally resolved this issue in favor of veteran-owned businesses.

Do You Know How to Properly Calculate Your Size? As small business contractors know, size is determined by looking at receipts over the last three fiscal tax years. Notice there’s a period at the end of this sentence. You cannot manipulate your size by delaying filing your last fiscal year’s tax returns, which was confirmed by a recent Small Business Administration Office of Hearings and Appeals decision. There, it took a federal agency over two years to award a contract to a firm that had self-certified as “small” at the time it submitted its offer, and, upon a size protest, the SBA area office asked the firm to produce its tax return for 2013 even though these had not yet been filed at the time of its 2014 offer. The SBA OHA confirmed that this request was proper and that the awardee’s size should have been calculated by referring to its 2011, 2012 and 2013 tax returns (i.e., the last three years prior to its offer).

Pay Attention to Limitations on Subcontracting Changes. A year ago, the SBA published a rule holding that the new standard for compliance with the limitations on subcontracting requirements is the amount paid by the government, not the cost of personnel (fully burdened direct labor rate). Also, in July of 2016, the VA issued a memorandum noting that from now on, it would be applying the SBA’s new rule (amount paid, not cost of personnel), and would later amend the VAAR to reflect this.

I am finding that many VA contracting officers do not know about this change or the class deviation. As such, if you are pursuing a VA SDVOSB set-aside contract, check to make sure the right clause is being applied. Especially in contracts where the cost of equipment is significant, it is entirely possible to be compliant under one clause but not another. And you don’t want to fall on the wrong side.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran business issues at: http://www.legalmeetspractical.com.

 

 

Getting Creative With VA Compensation Claims

When you think of the paperwork necessary to have your disability compensation claim granted by the U.S. Department of Veterans Affairs, you might not think that creativity can come in handy. What matters is adhering to deadlines, responding to the VA’s boilerplate correspondence, making sure the VA has all of your medical records in its possession, and showing up for VA-scheduled medical examinations.

Sometimes, however, creativity can help. This week, I was reminded of this when I attended an online continuing legal education course, hosted by an attorney named Eric Gang of Gang and Associates, LLC.

Mr. Gang told a story about a Vietnam war veteran he’d assisted with his disability claim for hearing loss. In that case, the Vietnam veteran didn’t have evidence of injury causing hearing loss during his service (his records were lost in the fire at the National Personnel Records Center). Accordingly, the VA was having an issue finding the “service-connected injury” prong of entitlement.

Get this – Mr. Gang established the veteran’s injury during service by submitting love letters. That’s right, love letters to the veteran’s then-girlfriend, to whom he has now been married for over half a century. While in Vietnam, he wrote her letters where he complained about the loud sounds from active warfare. These were submitted to the VA to demonstrate the in-service injury – consistent gunfire and booms and explosions that hurt his ears and ultimately caused hearing loss.

This tactic is similar to ones I’ve used in disability claims. For instance, when I helped my father with his claim, I tracked down Army buddies from Germany for detailed accounts of how he was injured. These were not in his files, because as I am sure many readers of this blog can understand, military men often don’t complain. They don’t go to go to sick bay to report a bad back or a hurt knee – they grin and bear it.

If you have a piece missing from your disability compensation claim, consider getting creative. The examples above show how thinking out of the box can demonstrate in-service injuries, but there are other gaps to be filled by creativity. For instance, in the Vietnam veteran example above, what if he not only didn’t have evidence of injury, but he hadn’t gone to the doctor for twenty years after being discharged? To show the nexus between the injury and the current disability, the veteran could submit lay witness (non-expert) statements of family members and friends describing what his hearing was like before, and after, his service, providing specific examples and dates.

These individuals are not medical experts, but they don’t have to be if they’re testifying to facts that are readily observable by a layperson (i.e., they can’t say, “I know he had hearing loss,” but they can say “he asked me to repeat myself,” “he watched T.V. at such a loud volume that the neighbor complained about the noise,” etc). It would just need to be clear that the statements are being offered to show personal observations, and not to provide expert medical opinions.

In addition to filling gaps, lay witness statements can help make the VA provide a veteran with a disability exam. This is part of the VA’s duty to assist. If credible lay witness statements show that a veteran may have a current disability, that won’t be enough to make the VA pay up, but it will trigger the VA’s duty to have an examiner weigh in on the subject.

Being creative has its merits. And that applies to VA disability claims, too.

Creative Mind

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran’s issues at: http://www.legalmeetspractical.com. Also, if you’d like to check out Sarah’s creativity outside of the legal sphere, check out her middle grade debut, Monsterville: A Lissa Black Productionhere. (Sarah is a writer for children ages 8-12).

**Sarah is not currently accepting new VA disability compensation claim clients. The information presented in this blog is for informational purposes only and is not legal advice. Every VA disability compensation claim is different and entitlement hinges upon the facts and circumstances of each case.

 

VA Won’t Bow to the King(domware Decision)

What’s the point in a victory if the other party refuses to admit they’re beat?

Recently, service-disabled veteran-owned small businesses (“SDVOSBs”) across the country are asking themselves that same question. Even though Kingdomware Technologies, Inc, a small business located in Waldorf, Maryland, spent years bravely acting as the representative of SDOVSBs in challenging the VA’s refusal to put veterans first in its issuance of set-aside contracts off the Federal Supply Schedule – sparring with the VA at the Government Accountability Office, the U.S. Court of Federal Claims, a U.S. District Court, and finally the U.S. Supreme Court – the VA has been attempting to find ways to wriggle out of its mandate ever since the Supreme Court handed down its unanimous decision last summer.

In a nutshell, the Supreme Court held that the VA is mandated to set aside certain contracts for veteran-owned small businesses (“VOSBs”) when “procuring goods and services pursuant to a contracting preference under [Title 38] or any other provision of law.” Known as the “Rule of Two,” this mandatory preference applies if the solicitation’s contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers the best value to the U.S. (38 U.S.C. § 8127(d)).

Since this ruling, I have not heard from veteran owners who have been leveraging the opportunities landed by this development. Instead, I have heard from veteran owners who have experienced the VA not following it. Veteran business organizations maintain that the VA policy memorandum issued to implement Kingdomware misinterprets the Supreme Court’s decision. They also report many instances of the VA attempting to skirt the decision’s requirements. This includes by:

  • Procuring open market medical surgical items and industrial supplies from large business prime contractors without regard to VETS First.
  • Contracting using strategic sourcing, to the detriment of veterans in the office products industry.
  • Placing Ability One vendors above veteran-owned small businesses (In fact, there is  a U.S. Court of Federal Claims pending with this accusation).
  • Sending requirements to other agencies to contract for VA.

The VA’s mission is “to fulfill President Lincoln’s promise: To care for him who shall have borne the battle, and for his widow, and his orphan ‘by serving and honoring the men and women who are America’s Veterans.'” The VA’s Office of Small and Disadvantaged Business Utilization’s (OSDBU) mission is to: “enable Veterans to gain access to economic opportunity by leveraging the federal procurement system and expanding participation of procurement-ready small businesses.”

If you are a veteran business owner competing in the federal marketplace, what do you think? Have you encountered issues with the VA circumventing Kingdomware? (Any comment made can be made anonymously, or with a handle – merely request it when you submit your comment). Also, if you’re interested in joining the D.C.-based National Veteran Small Business Coalition’s fight to shame the VA into following the Kingdomware mandate, you can access more information here.

As a procurement attorney and SDVOSB advocate, I find it necessary to note this: while I have heard many complaints about violations of Kingdomware, I have not heard from one business that is willing to stamp its name on a public declaration of the VA’s dereliction of duty. I understand – you fear retaliation, you fear the cost, and you don’t want to be “that guy.” But if everyone takes that stance, doesn’t that mean the VA will get its way?

We can’t let the Kingdomware ruling mean nothing. It’s too important for our nation’s veteran business owners.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran business news at: http://www.legalmeetspractical.com.

Not even a U.S. Supreme Court decision will make the VA bow to the king.

Not even a U.S. Supreme Court decision will make the VA bow to the king.

 

Are You In This VA Nightmare Too?

Have you ever been trapped in a nightmare where you run, and run, yet you always end up in the same place, with the same monster chasing you? Well, lately, that’s the exact situation of many veteran business owners, only that monster has a face – it is the VA’s Center for Verification and Evaluation, which has recently undergone a series of changes to effectively render the process a nightmare for all veterans who want to do set-aside business with the VA: long delays, redundant record requests, and vague citations to laws that do not exist to justify invasive and non-sensical requirements.

Monster

As an initial note to this blog, please comment if you have an anecdote to share about the new system. Perhaps, if enough folks chime in, the VA and OSBDU Executive Director Tom Leney might begin to recognize that this new piecemeal system needs to be scrapped. I can make your comment anonymous – just include a line with the request. 

Once upon a time, the CVE’s verification process was improving. It really was. There were a few snags, but it wasn’t the nightmare it now is. That nightmare is best illustrated by a case example representative of the process generally.* I am even being charitable here, as the example comes from a company wholly-owned by two service-disabled veterans with no outside employment, which has been reverified on multiple occasions (“Company”). Of all applicants, these folks should have encountered the least amount of trouble. Yet, here is what has happened so far:

  • Early January – Company submits VetBiz reverification application.
  • Mid-March – After ten weeks (the current wait time), CVE sends Company a boilerplate document called a “Pre-Application Questionnaire” that asks a series of eligibility questions. It makes no sense that this is a “Pre-Application Questionnaire,” given that the application is already submitted; also, since the questions bear on eligibility, wouldn’t it be a better use of everyone’s time for companies to complete this prior to submitting an application and wasting time if the company is ineligible? Still, Company complies and submits answers.
  • Mid-March – As the Company’s representative, I call the CVE to check status, advising that the Company’s verification period is expiring shortly and that they wish to bid on a VA set-aside contract after that date. Their examiner advises me that the documentation is “perfect” and she is not expecting any requests.
  • Late March – After radio silence, we receive a document request for at least six documents, which we comply with immediately.
  • Early April – The CVE asks for more documentation. Almost all of this documentation is necessitated only by the fact that the CVE has taken over three months to process the application and therefore it is now out of date. Whether a document is “current” is supposed to be determined as of the date of the application. Effectively, the CVE is penalizing the Company for its own delays; however, the Company has no choice but to comply.
  • Mid-April – The Company receives a request stating: “Due to new Federal Regulations, amendments to Operating Agreements must be within the Operating Agreement itself. . .This Operating Agreement must reflect the current date.”  First, I called the CVE and a manager confirmed that there is no “federal regulation;” this new requirement is an arbitrary CVE requirement. Second, state law generally does not require amendments to be effected this way, but the CVE is now making this company re-do their entire operating agreement to comply with its own arbitrary and random requirement. Third, by requiring the operating agreement to reflect the current date, this compromises company actions/changes because the date will be different than that of the actual effective date of the amendment. Fourth, this creates more work for the Company because it is forced to rewrite corporate documents that are perfectly good in the first place.

So, that’s where we are. An utter nightmare, and it appears all due to the system “improvements” effected in September/October of 2016. You will note that none of the above is specific to Company – these are generic issues everyone will encounter.

As an attorney who deals with many applications and VetBiz issues, I am baffled – yes, I am extremely frustrated for myself and veteran business owners who are battling the system (and note – this should not be a battle!), but also for the poor CVE examiners who are given convoluted, inconsistent, unproductive, and incorrect guidance to process applications for inclusion in the VA’s Veterans First Contracting Program. How is it that it was getting better several years ago, and now such huge steps backward have been taken?

The current status of every CVE examiner due to system "improvements."

The current status of every CVE examiner and veteran applicant due to system “improvements.”

It looks like we’re all stuck in the nightmare. So, how do we get out? Perhaps Executive Director, Tom Leney, might want to chime in here. After all, I understand he implemented the new system. And remember, Mr. Leney, when you attended my VetBiz presentation during a conference? You stood up and stated that the entirety of the content was accurate. I don’t want want to fight you. After all, both of our missions is to help veteran business owners. Right?

"No, Mr. Leney! I don't want to fight you!"

“No, Mr. Leney! I don’t want to fight you!”

 

*”Company,” while anonymous, approved the telling of its nightmarish tale.

**Did you find this article informative? If so, sign up for Sarah Schauerte’s blog on veteran issues at: http://www.legalmeetspractical.com.

Careful Examination of the CVE’s Gift Horse

As you may know, the VA’s Center for Verification and Evaluation (“CVE”), which deems firms to be service-disabled veteran-owned small businesses (“SDVOSBs”) or veteran-owned small businesses (“VOSBs”) for purposes of competing for set-aside contracts issued by the VA, recently announced that it’s implementing a three-year verification rule. It’s simple: March 21 and beyond, get in the program, get three years instead of two.

Now, however, the CVE has announced that everyone already in VetBiz gets the three years. If you check out your profile, the expiration date isn’t a mistake – you’ve been extended for another year.

Not to look a gift horse in the mouth, but this change is likely due to the CVE drowning in the backlog created by its new, convoluted and inefficient process that was implemented in September. (The CVE claims the backlog is due to the Kingdomware decision, but how many companies can really have jumped on the bandwagon after that? Most companies affected are already in VetBiz. And at any rate, shouldn’t the CVE have increased the number of examiners and taken reasonable measures to deal with an influx?).

If you are listed in the VetBiz registry, here is what you should know, based on your verification status:

  1. If you have submitted your reverification application but no one has contacted you yet (i.e., you have not yet been assigned an examiner), you don’t need to do anything. You will be administratively withdrawn and an extra year applied to your verification. (Just make sure you check your profile to confirm the new date).
  2. If you have submitted your reverification application and a case analyst has contacted you, you may go through the reverification process and receive your new three-year period. However, if you don’t feel like putting yourself through the trouble right now, you can withdraw and take advantage of having another year.
  3. If you are in VetBiz and are not yet up for reverification, your verification period has been extended for another year.
  4. If you have applied for VetBiz for the first time, you will be verified for three years assuming your application is successful.

Here is the VA’s publication on the new three-year period. (Interestingly, while this affects every single business in VetBiz, it is my understanding that no email will be sent out to alert business owners). If you have thoughts on the new three-year period or comments to share about your experience with the CVE (especially if you have encountered the new process, post September 2016), please comment below. Upon request, I am happy to make your comment anonymous or to substitute your name with a handle.

Thanks for reading, and I’ll continue to keep you posted with further changes that affect veteran-owned businesses!

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog at: http://www.legalmeetspractical.com.

gift_horse

VA News in a Flash

I’m sure we’re all busy this Friday, so here are three VA-related news items. In the interest of brevity (despite my lawyer status), they’re all 100 words or less!

Firms VetBiz-Verified March 21st and Beyond Get THREE Years! If you’re waiting for approval of your VetBiz application, you should hope that the VA holds off for a few days. Any business that becomes verified or re-verified March 21 and beyond will be verified for a period of three years, not two.

It’s worth asking whether this change is a quick fix to appease veteran business owners who are frustrated at more substantive problems: the CVE’s requesting of invasive, irrelevant documents, 0877 headaches, long delays, and abrasive examiners (There are pleasant ones, too). These issues that have been called to the CVE’s attention many times, but no changes have been effected.

VA Institutes New Pre-Need Burial Program. A new VA program allows veterans, spouses and unmarried dependent adult children to prepare for burial in a VA national cemetery prior to the time of need. Interested individuals may submit VA Form 40-10007 Application for Pre-Need Determination of Eligibility for Burial in a VA National Cemetery, along with a copy of supporting documentation of military service such as a DD214, if readily available, by: toll-free fax at 1-855-840-8299; email to Eligibility.PreNeed@va.gov; or mail to the National Cemetery Scheduling Office, P.O. Box 510543, St. Louis, MO 63151.

VETS 17 Is In Three Months! The National Veteran Small Business Coalition (NVSBC) is an extremely constructive, professional, and well-organized veteran business advocacy group that has done much to protect veterans’ interests in the federal contract arena. The NVSBC’s annual conference is set for June 12-14 in Norfolk, Virginia. Attendees will network with prospective teaming partners and procurement officials, attend training sessions (I’m presenting on VetBiz), and learn about navigating government contracts. Especially valuable for start-ups and businesses newer to the federal contracting arena, early bird registration ends March 31. Learn more here.

That’s it! Happy weekend to all!

calvin

*Did you find this article informative? If so, sign up for Sarah Schauerte’s blog on veteran issues at: http://www.legalmeetspractical.com.

Is This PTSD Treatment Method Legal In Your State?

As many of you know, numerous states already allow veterans who suffer from post-traumatic stress disorder (“PTSD”) access to medical marijuana. Currently, twenty states (including Guam and Puerto Rico) permit medical marijuana to be used to treat PTSD. These include the following:

  • Arizona
  • Arkansas
  • California
  • Connecticut
  • Delaware
  • Florida
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Jersey
  • New Mexico
  • North Dakota
  • Ohio
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Washington, D.C.
  • Puerto Rico
  • Guam

In addition to these states, other states are beginning to recognize medical marijuana as a legitimate means of treating PTSD. For example, laws to allow usage are in the works in Colorado, Georgia, and New Mexico. If you are a veteran or a family member who believes medical marijuana may be a viable method of treating PTSD (or if you have strong feelings against it), it may be worth looking into whether this is an item on the legislative agenda.

Furthermore, if you are an active military member, know that using medical marijuana may not be an option even if it is legal in your state. This because the military still considers marijuana a controlled substance. Someone in active duty caught using the drug could be punished and in most cases, processed for separation from the military. For someone who is not on active duty, it could still result in a discharge, which could close the door for future benefits and career options.

To be frank, medical marijuana for PTSD treatment is not an issue I have followed. I do, however, know that many have strong opinions one way or the other – some who say that it amounts to “self medication” (such as alcohol), and some who believe that it as viable a treatment method as a pill prescription. With 20 states already having signed legislation legalizing medical marijuana as treatment for PTSD, more will likely follow in the next few years.

If you’re interested in learning more about this subject – current state-based legislation, benefits and drawbacks, legal issues, etc., find a great resource here. And, as always, if you have opinions on this subject or know of further resources, please feel free to comment.

Lively discourse is, of course, legal everywhere.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran’s issues at: http://www.legalmeetspractical.com.

 

New CVE Rule Tries to Keep It Simple

As many of you may have heard, the VA’s Center for Verification and Evaluation (“CVE”) is considering an interim final rule to require firms to go through the VetBiz verification process every three years, not two. (Verification is necessary for firms interested in competing for SDVOSB or VOSB set-aside contracts issued by the VA). This is a welcome change for many, simply because the verification process is tedious and cumbersome, and it’s obviously preferable to be spared from it for an extra year.

The VA gave the following reason for the change:

“This change is appropriate because VA conducts a robust examination of personal and company documentation to verify ownership and control by Veterans of applicant businesses. In addition to verifying individual owners’ service- disabled veteran status or veteran status, in accordance with 38 CFR 74.20(b), VA reviews an applicant’s: [lists the required documentation]. Given the depth of this review, annual or biennial re-verification examinations have become an unnecessary administrative burden on both applicants/participants and VA.”

I’m all for simplifying the VA’s verification process, which has gone sharply downhill over the last few months due to new processes. However, I don’t believe this rule should apply to newly-formed companies that obtain verified status shortly thereafter. Requiring these companies to go through re-verification every two years provides a needed check, as firms can go through considerable changes during that time period. This is especially true for start-up firms that speed through the verification process due to the fact that they have very little documentation to provide. After they are verified and begin building their infrastructure and performing contracts, that’s when eligibility issues arise. As such, to permit those firms to remain verified for three years undermines the integrity of the program. It also puts those firms at risk, as the verification process provides an official audit of their eligibility for the set-aside contracts they depend upon for financial viability. (As such, if anything is wrong, it can be pointed out and corrected during the verification process). Accordingly, I believe the three-year rule should only apply to firms that have already been re-verified once.

If the VA wants to simplify the verification process, how about doing away with requesting tax returns? Not only is that requirement invasive, but especially for the non-veteran business owner it is complexly irrelevant. Why on earth does the CVE need the non-veteran business owner’s spouse’s W2? The CVE states that the tax return is necessary to see where the business owners are receiving their revenue, but how is that really relevant? A business should not have to withdraw because the veteran can’t find the W2 that shows he earns $3K a year as a referee for a high school basketball team. Nor should it have to withdraw because the non-veteran’s spouse holds her W2 hostage (which, ironically, undermines the “control” the VA is so concerned with the veteran having).

What do you think? How can the CVE simplify its process? Also, if you want to comment on the new three-year rule, the VA is accepting comments through April 24. Go here for specific instructions for submitting a comment.

*If you found this article informative, sign up for Sarah Schauerte’s legal blog at: http://www.legalmeetspractical.com.

 

Trump’s Pick for VA Secretary: Who Is This Guy?

If you caught my blog last week, you learned that on January 11, President elect Donald Trump announced his intention to nominate Dr. David Shulkin to be VA Secretary. Here are the top ten things you need to know about Dr. Shulkin and his appointment to this important position:

  1. Dr. Shulkin currently serves as the Undersecretary for Health at the VA, a position he has held since July of 2015. The Undersecretary is the highest official directly responsible for the Veterans Health Administration.
  2. When Dr. Shulkin took over as Undersecretary, these were his top five priorities: Fix access; staff and physician engagement; consistency of best practices and resource prioritization; development of a high performance network; and restore trust and confidence. Of these, he expressed that restoring trust and confidence was the most important.
  3. A practicing physician, Dr. Shulkin continues to see patients despite his role as Undersecretary.
  4. The following is his biography in a nutshell: numerous chief executive roles in medical facilities and organizations; numerous physician leadership roles including the Chief Medical Officer of the University of Pennsylvania Health System, the Hospital of the University of Pennsylvania, Temple University Hospital, and the Medical College of Pennsylvania Hospital; numerous academic positions including the Chairman of Medicine and Vice Dean at Drexel University School of Medicine. The question, of course, is whether these roles prepare him for his biggest one yet: to lead our embattled and beleaguered VA.
  5. Unlike every previous VA Secretary, Dr. Shulkin is not a veteran.
  6. Dr. Shulkin has said that his number one priority as Secretary will be increasing veteran access to health care.
  7. Dr. Shulkin has mentioned the need to apply “best practices from the private sector” to the VA.
  8. Dr. Shulkin oversaw increased use of private care outside VA with mixed results. As Undersecretary, Dr. Shulkin has nearly doubled the amount of health care that veterans receive through private doctors. But he has also rejected calls for broader privatization, saying that it would cost untold billions and undermine the hospital system — a stance that puts him at odds with President Trump.
  9. Dr. Shulkin has not spoken in detail on his intentions to implement/follow the Kingdomware decision as it relates to the Veterans First Program.
  10. In the weeks to come, the Senate Committee on Veterans Affairs will hold a hearing on Dr. Shulkin’s nomination.

The VA needs process improvement, and I have the hope that Dr. Shulkin can bring this to our embattled VA. However, consider the red tape and broken system he faces – even the best pick for Secretary has struggles ahead.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veterans issues at: http://www.legalmeetspractical.com.

Will Trumps pick for VA Secretary make us happy?

Will Trump’s pick for VA Secretary make us happy?

 

Or happy?

Or unhappy? Time will tell. . .

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