VA Benefits:

Improvements Needed to Ensure Claimants Receive Appropriate Representation

GAO-13-643: Published: Aug 1, 2013. Publicly Released: Aug 30, 2013.

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What GAO Found

The Department of Veterans Affairs' (VA) Office of General Counsel (OGC) procedures do not sufficiently ensure that accredited representatives have good character and knowledge. While GAO's analysis shows that VA follows its procedures for reviewing initial accreditation applications, VA relies on limited self-reported information to determine whether applicants have a criminal history or their character could be called into question, which in turn leaves VA vulnerable to accrediting individuals who may not provide responsible assistance. For example, when GAO conducted additional checks on a non-representative sample of accredited individuals, GAO found that some individuals had histories of bankruptcies or liens, information which could help develop a more complete picture of applicants' character and prompt further inquiry by VA into their background. VA's procedures also do not ensure that representatives have adequate program knowledge. For example, VA's initial training requirements are minimal and VA does not consistently monitor whether representatives meet additional continuing education requirements. As a result, some accredited representatives may not have adequate program knowledge to effectively assist clients with their claims. After being briefed on GAO's findings in May 2013, VA's OGC announced plans to take additional steps toward conducting background checks on applicants and auditing ongoing character and training requirements.

VA efforts to administer accreditation are hindered by an inadequate allocation of resources and unclear communication with claimants. For example, OGC has only four staff dedicated to overseeing thousands of accreditation applications each year, in addition to monitoring approximately 20,000 accredited representatives. As a result, OGC has not kept pace with pending accreditation applications, and has not consistently monitored continuing requirements. OGC's reliance on manual data entry results in resource-intensive program administration. For instance, OGC lacks information technology systems and tools that would help it proactively and efficiently identify representatives who are not meeting ongoing training requirements. Moreover, VA does not clearly solicit feedback from claimants about accredited representatives. For example, neither VA's accreditation web page nor information VA sends to claimants clearly communicates their rights or how to report abuses. Absent such outreach, claimants may not be aware that some representatives may be engaging in prohibited practices. Lastly, VA's current accreditation program does not address some emerging threats to claimants. For instance, VA has received complaints regarding unaccredited individuals inappropriately charging claimants to apply for benefits. By law, only accredited individuals can assist claimants. However, VA is not aware of the extent these unaccredited individuals operate, and is limited in the actions it can take to prevent them from assisting claimants.

Why GAO Did This Study

Representatives accredited by VA serve a critical role in helping veterans or their family members file claims for VA benefits. By law, accredited individuals must demonstrate good moral character and program knowledge and VA's OGC is tasked to ensure they do so by reviewing initial applications and monitoring ongoing requirements, such as training.

GAO examined (1) the extent to which VA's procedures adequately ensure representatives meet program requirements, and (2) any obstacles that may impede VA's efforts to adequately implement its accreditation process. GAO reviewed relevant federal laws, regulations and procedures, and interviewed VA officials and organizations of accredited representatives. GAO also reviewed a representative sample of accreditation decisions made in 2012 as well as complaints received by VA in 2012. GAO also conducted additional checks on a random but small and non-representative sample of accredited individuals.

What GAO Recommends

To improve the integrity of accreditation, GAO recommends that VA explore options for strengthening knowledge requirements and addressing emerging threats, improve its outreach, and determine the resources needed to adequately carry out accreditation. VA concurred or concurred in principle with GAO's recommendations and cautioned that imposing additional requirements to address concerns with representative knowledge or address emerging threats could have a chilling effect on representation.

For more information, contact Daniel Bertoni at (202) 512-7215 or bertonid@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: As of July 2015, VA reports that its Office of General Counsel (OGC) has increased the staff resources available to the program. OGC created 3.5 new Program Support Assistant positions within the accreditation program, which will focus on program administration, records processing, and customer service. OGC expects that these support assistants will start work by September 2015. While waiting for these hires to take place, VA authorized overtime for existing staff so the program would not fall behind in processing applications and continuing education certifications. As of July 2015, VA reports that it is current in processing these submissions. Further, the OGC staff group which oversees accreditation increased its staffing in 2015 from 7 to 12 attorneys, all of whom will share in the responsibilities of administering the program. VA expects that these additional attorneys will allow the program to better investigate complaints regarding representation and foster relationships with state law enforcement that could prosecute individuals. One of the new attorneys has also been tasked with rewriting the regulations governing accreditation to implement potential improvements identified by VA. Additionally, the Deputy Assistant General Counsel who oversees the day-to-day operations of the accreditation program will be freed of other responsibilities as of October 2015 in order to provide full-time oversight of the program. Regarding IT resources, OGC previously planned to develop an IT function to allow individuals to electronically submit accreditation applications and information on continuing education requirements. However, VA reports that these plans are on hold due to technical barriers with its existing database. OGC instead plans to explore alternative database systems that will meet program needs, including electronic submission of records. OGC will also work with other VA components to integrate its systems with existing VA databases. GAO will continue to monitor VA's efforts to improve staff and IT resources in the accreditation program.

    Recommendation: To improve VA's ability to ensure that claimants are represented by qualified and responsible individuals, the Secretary of Veterans Affairs should explore options and take steps to ensure an appropriate level of staff and IT resources are in place to implement the requirements of the accreditation program. This should include exploring options for utilizing other VA components and resources outside of OGC.

    Agency Affected: Department of Veterans Affairs

  2. Status: Open

    Comments: VA reports taking a number of steps to strengthen knowledge requirements in the accreditation program. Since 2013, Office of General Counsel (OGC) has conducted reviews of 18 veteran service organizations (VSO) and has reviewed their training materials and their requirements for skills and qualifications to handle veterans' claims. As a result, VA is taking steps to remove recognition of one organization when it determined that it no longer has any accredited representatives and no longer represents veterans before VA. VA also hosts a number of ongoing meetings where it communicates changes in veterans benefit law and procedures throughout the year, including bi-weekly meeting with VSOs and quarterly meetings between the Under Secretary for Benefits and the Executive Directors of VSOs. Regarding ongoing knowledge for attorneys and claim representatives, OGC is reconsidering its initial response to GAO that existing CLE requirements are adequate to ensure skilled representation. OGC is considering increasing its CLE requirements and requiring that the CLE requirement be met prior to accreditation. Further, OGC has reviewed ongoing training certifications submitted by representatives over the past year and found that many of the CLE courses taken are limited in their scope and usefulness to representation. As such, it plans to revise the ongoing training requirements for attorneys and agents. OGC has also taken a number of steps to increase the pool of skilled veterans attorneys. It has fostered relationships with law school clinics to increase opportunities for students to receive veterans law training as part of their education. OGC has also supported organizations that recruit and train volunteer attorneys to represent veterans by working to expedite their accreditation applications. Finally, OGC plans to continue providing training on accreditation and VA standards of conduct at state bar and veteran advocate conferences. GAO will continue to monitor VA's efforts to strengthen knowledge requirements and will review changes to these requirements when complete.

    Recommendation: To improve VA's ability to ensure that claimants are represented by qualified and responsible individuals, the Secretary of Veterans Affairs should explore options and take steps to strengthen initial and continuing knowledge requirements for accreditation for all types of representatives.

    Agency Affected: Department of Veterans Affairs

  3. Status: Open

    Comments: VA reports Office of General Counsel (OGC) has taken several steps to enhance communication with claimants. In 2014, OGC updated its web page to allow individuals to submit complaints regarding representation. In 2015, OGC published several fact sheets on its site, including applying for accreditation as an attorney or agent, the pension program and representation, how to file a complaint, and how to challenge a fee. As of July 2015, OGC is developing several more fact sheets. VA has also sought to increase the visibility of accreditation on its web site by including links to the accreditation program on the main VA page and on its VSO page. In 2015, OGC presented at two outreach events and discussed common misuses of the accreditation program and, as of July 2015, plan to make additional presentations at conferences in October and November of 2015. GAO will continue to monitor VA's efforts to enhance communication with claimants.

    Recommendation: To improve VA's ability to ensure that claimants are represented by qualified and responsible individuals, the Secretary of Veterans Affairs should explore options and take steps to enhance communications with claimants, including how they can report complaints related to their representation. This could include exploring options for incorporating information about representation and veterans' rights into existing communications and outreach efforts.

    Agency Affected: Department of Veterans Affairs

  4. Status: Open

    Comments: VA reports it is taking several actions to address potentially abusive practices by representatives. In January 2015, VA published a proposed rule to revise its pension program regulations to impose a three-year "look-back" period. This proposed rule would allow VA to deny or discontinue pension payments if a claimant disposes of assets at less than a fair market value in the three years prior to applying for pension benefits. VA states that one of the purposes of this change is to deter financial planners who market financial services designed to allow claimants evade the income and asset limitations for eligibility for VA pensions. As of July 2015, VA has received comments on its proposed rule and incorporating this input into drafting a final rule. VA also reports that it is seeking to obtain access to a database of state bar disciplinary actions maintained by the American Bar Association. This will give OGC another avenue to obtain information about the suitability of attorney representatives and alert them to changes in their disciplinary status. In addition, VA reports it is increasing its activities to deal with potentially deceptive or abusive practices. OGC has collaborated with the Consumer Finance Protection Bureau (CFPB) and CFPB has included information on potentially abusive practices in its outreach. OGC is also pursuing an agreement to allow it to access CFPB records that involve veterans and representation. In regards to pursuing representatives who commit abuses, OGC testified in 2014 Maryland state court case and in 2015 is working to refer another case to CFPB for it to possibly prosecute. Lastly, in 2015 OGC presented before two conferences for state attorneys general and their staff. OGC provided information on representation concerns and VA enforcement challenges, and encouraged the enforcement of state consumer protection laws. GAO will track VA's progress in revising its regulations and its other efforts to deter abusive practices.

    Recommendation: To improve VA's ability to ensure that claimants are represented by qualified and responsible individuals, the Secretary of Veterans Affairs should explore options and take steps to address potentially abusive practices by representatives who lack accreditation, charge inappropriate fees, or sell financial products to claimants that are not in their best interest. If necessary, VA should consider seeking additional legislative authority to address such practices and enforce program rules.

    Agency Affected: Department of Veterans Affairs

 

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