Thursday, February 09, 2012






Today the House Veterans Subcommittee on Oversight and Investigations held a hearing on the VA's fiduciary system. There are veterans who are unable to overseeing or manage their benefits solely by themselves so they might ask that someone be a fiduciary -- thereby putting someone in charge of overseeing the benefits. The veteran might pick someone they know or they might ask the VA to select someone. There are problems with the system currently. The Subcommittee attempted to determine why that was.
The hearing had two panels (and many breaks due to votes on the House floor). The first panel was the VA's Dave McLenachen (with the VA's Diana Rubin), the second panel was composed of Katrina Eagle with the Veterans Law Office of Michael Wildhaber, Veteran Fiduciary Pam Estes, attorney Doug Rosinski with the Law Office of Douglas J. Rosinski, and Vietnam Veterans of America's Rick Weidman. US House Rep Bill Johnson is the Chair of the Subcommittee. And we'll note this exchange.
Chair Bill Johnson: What are the criteria for choosing a fiduciary:
Dave McLenachen: Mr. Chairman, the criteria for choosing a fiduciary is-is controlled by law. Congress required us when looking to see who should be a fiduciary to check a number of things: criminal history, credit and general willingness to act as a fidcuairy for a beneficiary. VA's policy, Mr. Chairman, is to always try to select the least restrictive and most effective payment for a beneficiary. To do that, the first thing that we do is look at who does the beneficiary want us to appoint? That's our first step. If we can qualify that person we will -- we will appoint that person. If that person cannot be qualified, we'll look to the person who has the care and custody of the beneficiary. That may be a family member that lives with the beneficiary and provides care or maybe a guardian? That's who we look to next. The next step is any other family member of person interested in performing these functions for a beneficiary. Only as a last resort, Mr. Chairman, will we look to a paid fiduciary or a court-appointed fiduciary. That is because we're looking for the least restrictive method. And I -- And I can assure you, Mr. Chairman, that that is our policy and that Just so there's no misunderstanding, currently only about 8% of the roughtly 120,000 beneficiaries pay a commission for fiduciary services.
Chair Bill Johnson: Okay, the CFR states that a commission is only given to a beneficiary when it is necessary to obtain his or her services. Further it states that commissions should only be used if the veterans best interests would be served by the appointment of a qualified professional or a qualified person. What does qualified mean to the VA?
Dave McLenachen: To us, Mr. Chairman, qualified -- as I've described -- means that it's a person that has the interest of the beneficiary in mind, is willing to perform the service and meets the qualifications that have been prescribed by Congress for us to implement. That is what the regulations are referring to. So if it's an individual who has a criminal history or that has bad credit history or for some other reason cannot be bonded, that individual will not be appointed as a fiduciary --
Chair Bill Johnson: Are there -- are there any educational or other qualifications required to be classified as a qualified person?
Dave McLenachen: Not at this time, sir. However, one of the first things that I did when I took this job approximately five months ago was to initiate a complete review of our current regulations which Congressman [Jon] Runyan mentioned during his statement. I think there's a real need to update those regulations. We've reviewed all of those regulations and are currently revising them now. That is one issue that I would like to address in our regulations is whether there should be such requirements for fiduciaries?
Chair Bill Johnson: Would it -- would it surprise you to know that we have sworn testimony that a VA fiduciary stated that she had approximately one semester of community college education while she is the appointed fiduciary for 43 veterans, as a single mother working full time. Is that -- Would that be the VA's acceptable criteria for a qualified person?
Dave McLenachen: Sir, I can tell you that with our current regulations, there is nothing to prohibit that fiduciary from serving in that role.
Chair Bill Johnson: In your opinion, would that be a qualified fiduciary? If you're a veteran would you want -- is that who you would want to put in charge of your daily care?
Dave McLenachen: It may be, sir. If that's the wishes of the veteran to have that particular --
Chair Bill Johnson: No, not this wasn't the wishes of the veteran. I'm talking about the VA appointing someone who is a qualified person. The veteran has gone to the VA saying I need a fiduciary and you request a fiduciary. Would that be your idea of a qualified person?
Dave McLenachen: Sir, I would like to strengthen the requirements to be a fudiciary. So in that instance, I think that there should be some more stringent requirements.
Chair Bill Johnson: Okay. How many fiduciaries have the background checks or certifications waived?
Dave McLenachen: Sir, we just recently issued new guidance that affirms our responsibility to check the background --
Chair Bill Johnson: Does the VA waive fiduciary background checks and certifications?
Dave McLenachen: It's not my knowledge that we do. Uh, the guidance out there now is to check background in every fiduciary --
Chair Bill Johnson: I hope you're going to stay around for all of the testimony today then.
As Johnson noted in the hearing, ten veterans saw their fiduciary walk away with $900,000 of their money. 4% is supposed to be the largest amount the fiduciary can take of the veterans annual benefits. However, the Subcommittee was already aware of fiduciaries taking more than 4%. As the exchange above made clear, there appears to be a lack of serious oversight. The House Veterans Disability Subcommittee has also been examining this issue and a number of them sat in on the hearing. The Ranking Member on that Subcommittee is Jerry Mcnerny and he noted the lack of "oversight and accountability." He noted a 2010 field hearing where family members serving as fiduciaries were actually experiencing more government oversight than were strangers the VA picked to serve as fiduciaries. (One of the most public cases in the news during the current wars was of a family -- parents -- who used their disabled war veteran son's VA benefit checks to buy themselves a new truck, to go gambling and much more. I'm not implying that family members don't need oversight nor was Mcnerny implying that. He was noting that hand picked choices by the veterans, people who had the veterans trust, were getting more oversight than these people who are professional fiduciaries -- meaning they are primarly being fiduciaries for strangers due to the pay.) Mcnerny noted that most fiduciaries are doing an outstanding job. Rubens agreed noting that 90% of the fiduciaries are taking care of only one veteran.
Still on veterans issues, Senator Patty Murray is the Chair of the Senate Veterans Affairs Commitee and her office notes the following:
Contact: Murray Press Office
(202) 224-2834
VETERANS: Senator Murray Participates in Virtual Town Hall Meeting hosted by Disabled American Veterans
Murray fielded questions, concerns, and suggestions from veterans, members of the military, and their family members across the country.
View full transcript of the Disabled American Veterans' Virtual Town Hall HERE.
(Washington, D.C.) -- Today, U.S. Senator Patty Murray, Chairman of the Senate Veterans' Affairs Committee, had the opportunity to chat one-on-one with veterans across the country in a Virtual Town Hall Meeting, organized by Disabled American Veterans, a non-profit charity dedicated to building better lives for America's disabled veterans and their families. In the hour-long chat, Senator Murray discussed a wide range of issues including mental health care, VA claims wait times, women veterans, and veteran jobs. Over 3,000 veterans, members of the military and family members participated in the chat. Senator Murray will use the struggles, stories, and suggestions she heard today to continue to fight for veterans in Washington, D.C.
On this week's. Black Agenda Radio, hosted by Glen Ford and Nellie Bailey, (airs each Monday at 4:00 pm EST on the Progressive Radio Network), featured an interview with journalist Ralph Poynter, husband of the people's attorney, political prisoner Lynne Stewart. Excerpt.
Glen Ford: On the last day of Feburary, a court will hear the appeal of movement lawyer Lynne Stewart imprisoned for 10 years on charges of supporting terrorism. Stewart was the attorney for Omar Abdul Rahman the so-called "blind Sheikh" charged with the 1993 bombing of the World Trade Center. Attorney Stewart is in federal prison in Fort Worth, Texas. She was first sentenced to only two-and-a-half years but then the courts decided to pile on some more years. Her husband and co-activist Ralph Poynter explains.
Ralph Poynter: This is an appeal of the re-sentencing Lynne received. She received a sentence of two-and-a-half years. 28 to 30 months. Then, when she was appealing, when she was free on her appeal, they called her back for a re-sentencing because a government appeal to the 2nd Circuit of a sentence 'too light' was taken up and two of the three judges agreed that the sentence was 'too light.' And besides Lynne Stewart continued "traveling around the country at the law schools and universities corrupting our youth." These are the words of the judges of the 2nd Circuit.
Glen Ford: In other words, her sentence was increased -- five times -- to ten years based upon her speech?
Ralph Poynter: Based upon her speech and they said it: "traveling around the country at law schools and universities corrupting our youth." Now Lynne Stewart said that the treatment of Sheikh Omar Abdul Rahman was racist and government funded and that there was no terror plot, that the government had done it. And it was all done by an Egyptian double agent, Emad Salem, who was hired by the Egyptian government and the American FBI --or CIA -- and so she had him on the witness stand and she caught him lying 32 times. And it got to the point where he just said, "Well I guess, Miss Stewart, I mis-stated, I lied," and put his head down. The jury heard that and yet they convicted Sheikh Omar Abdul Rahman.
Glen Ford: So when Lynne went to these universities and law schools, she was not just exercising her own freedom of speech to say whatever she said, but also she was speaking on behalf of her client as a lawyer?
Ralph Poynter: Yes, the blind Sheikh, on his appeals, and his right for the First Amendment. And she answered all questions and she gave these law students a history lesson on racism in America. And she would use her own experiences -- experiences the people of the sixties, the activists, because remember Lynne Stewart was a teacher and an activist, she was a Christian Dutch Reform and honor student. And when she came to New York City as a 23-year-old who was born not five miles from Harlem, she didn't know it existed. So she said, "This is American miseducation. Not only do they not treat the Black children to read, write and count, they don't teach White children what America is and I'm the example." And you could imagine what effect that had on the students. So no wonder we are where we are: Islamophobia. And then she went into law, what law is about, understanding the Bill of Rights and what a lawyer's job is and how it came to this formulation. And one of the things that Lynne and I have an argument about, she says that with all of the warts and flaws in the new US justice system, she thinks it's the best model. But it will only be that if the lawyers play their proper role of being the person between the government and the accused and explaining that that is what protects all of us -- a vigorous defense by attorneys -- and if one person doesn't have that defense, none of us do.
Glen Ford: So when Lynne is talking to university students and law students about her principles and explaining her actions and what she thinks it means to be a citizen and a lawyer she is then faced with this massive retribution -- an increase of five times her sentence -- and in her appeal she's calling that substantial unreasonableness in terms of legalese.
Ralph Poynter: And this is what the appeal is. Now, before you can appeal your basic sentence, you know, her basic guilt -- she was found guilty in the federal court of terrorism, supporting terrorism, she has to go through the Second Circuit so this is a double. She's opposing the unreasonableness and the unfairness and the illegal upping of her sentence before she can before the Supreme Court on her original trial, the trial of being found guilty of supporting terrorism. Now the question is: How are they going to defend this? My answer to that is: If there were law in the first place, Lynne would never be in jail. And one of the first speeches that she made, they were holding a conference in California on the coming of the police state and Lynne was the speaker and she said, "The coming of the police state? The police state has always been here for certain members of our nation and now it's coming to White people and I'm the evidence." And it was standing ovation. The police state has always been here, the people didn't recognize it because it was against us [persons of color -- Ralph Poynter is African-American].
Glen Ford: And that statement was one of those -- and reports on that statement in the press was one of those factors in the judge multiplying her sentence by five?
Ralph Poynter: You got that 100% right.
Glen Ford: And thus verifying that the police state had arrived.
Ralph Poynter: And as I said to Lynne, you have to understand, we just got out of COINTELPRO, they listened to everything. She felt that one of the most embarrassing things of the left was allowing our defenders of the community to lay in jail all of these years.
Lynne's appeal takes place at the end of this month. She notes:
The same group of 3 Judges that heard and decided the original appeal will also hear the arguments on the 29th. The government is not asking for more time; they are satisfied with their pound of flesh but it is not likely that this Court will take any action that will help me. The times are askew for prisoners and their lawsuits.
The lawyers that argued in July of 2010 will be on board with the addition of Herald Price Fahringer, an eminent attorney in the First Amendment field (the win in the Larry Flynt Hustler case in the US Supreme Court was his. He was also in the line of fire (no injuries) when the shooting took place.) He will enthusiastically present our case. I will not be present -- not unusual once imprisoned. But my spirit will be there to inspire !!!
Of course, my case has always been government firing warning shots to Lawyers, that a vigorous defense, of certain clients, if not conforming to government specifications, will be punished severely . This chill effect in these days that we are confronted with Grand Jury investigations and dismantling of Occupations is not something we should contemplate with anything less than alarm. I have just finished David Gilbert's book (Love Struggle) and the intercession of lawyers when there are arrests of designated enemies of the "state" are the only meaningful protection available.
A Large Outpouring of Support in Foley Square and Tom Paine Park and in the Courtroom will signal to these arbiters of "Justice" that attention must be paid, the 99% are watching them with suspicion and tallying up the roads not taken.