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: Closed - Implemented

    Comments: Since 2015, VA reported taking a number of steps to enhance the staffing and IT resources available to the accreditation program. As of September 2016, VA reported adding an additional 3 attorneys to the OGC group responsible for overseeing accreditation, bringing the number of attorneys who share in the responsibilities of accreditation to 15. Further, two of those attorneys are specializing in investigating and prosecuting complaints regarding accredited individuals. VA also reported that it increased the efficiency of its operations by delegating and allowing lower level staff to make accreditation decisions. For instance, character and fitness reviews previously conducted at the Deputy Chief Counsel level are now conducted by several staff attorneys, and the Chief Counsel for the staff group delegated the authority to cancel accreditation for individuals who longer meet program requirements. In addition, VA reported that its OGC has taken steps to increase administrative support for accreditation. OGC hired several additional program staff assistants, and as of September 2016, VA had authorized use of overtime to fill a gap in staffing. VA also reported that OGC is in the process of filling two program specialist positions that are intended to take on some of the tasks currently assigned to attorneys. Regarding IT, VA reported taking several steps to increase the automation of certain tasks. For instance, OGC collaborated with VBA to integrate information about accredited attorneys and agents into VA's Corporate Database to assist VBA in communicating with the representatives on claims for which they are providing representation. In August 2016, OGC began using a digital communications platform to provide to remind accredited attorneys and agents of deadlines to provide certifications of continuing education and good-standing certifications. It also automated the process of generating suspension letters to individuals who failed to meet continuing education requirements, and VA reported that the program is increasing its use of email over paper communications for non-sensitive communications.

    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: Closed - Implemented

    Comments: VA reported that it developed a proposed rule that to strengthen initial and continuing knowledge requirements for attorneys and agents. As of July 2017, this proposal has been submitted for supervisory review. The proposed rule would require applicants to complete three hours of continuing legal education (CLE) within the six months prior to becoming accredited, and require attorneys and agents to complete three CLE hours annually. Currently, no such training is required prior to applying and attorneys and agents are required to take only three hours of continuing education every two years. VA noted that the proposed rule also requires that the initial CLE training include instruction on the VA standards of conduct. VA also reported that it continues to play in active role in providing training in order to increase the pool of skilled Veterans benefit law practitioners. For instance, since Fall 2016, VA has presented training on the representation of claimants at several venues including several trainings to military lawyers and to a symposium on veteran access to justice. In addition, VA reported that its OGC requested and reviewed information from nine VSOs in fiscal year 2016 on their training programs to help ensure that VSO representatives have appropriate skills to assist veterans with their claims.

    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: Closed - Implemented

    Comments: VA has taken a number of concrete steps to better communicate information about accreditation and representation to claimants. OGC published a number of factsheets on its accreditation web site, including one about how to file a complaint regarding representation. In addition, its web site now includes instructions on how to contact OGC regarding complaints. Since 2015, OGC added a factsheet on the accreditation program's enforcement authority, which contains information on what OGC can and cannot do in response to complaints regarding representatives, and includes referrals to other organizations that may be able to take additional actions against representatives. For instance, it suggests individuals contact their state attorney general or the Federal Trade Commission if someone is trying to poach their pension benefits. In addition, VA reported that the VBA web site now has a link so that individuals applying for benefits can search for representatives that have been accredited. This web page also provides claimants with information on fees that representatives are and are not permitted to charge. VA also reported that its OGC has continued over the last several years to conduct outreach regarding accreditation to veterans and their families, and to VA employees who have direct contact with veterans. Relatedly, OGC attorneys have delivered presentations on the accreditation program before a number of organizations representing veterans, survivors, and attorneys and agents.

    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: Closed - Implemented

    Comments: VA has taken a number of concrete steps to address potentially abusive practices by attorneys and agents. As of July 2017, VA reported that it has been using the American Bar Association's National Lawyer Regulatory Data Bank to help prevent the accreditation of attorneys that have been disbarred or suspended. VA also noted that it has been sending cease-and-desist letters to unrecognized organizations and unaccredited individuals to notify them that they may be engaging in illegal activities, and working with state and federal authorities with enforcement powers in these matters. VA also updated the accreditation web page to clarify accredited individuals' ethical obligations. Further, VA continues to provide information to different groups on potentially abusive practices, including in 2017 at an attorney training institute and at an event for members of Congress and their staff. Beyond these actions, VA reports that it continues to work on a rule to revise its pension program regulations to impose a three-year "look-back" period. This rule would allow VA to deny or discontinue pension payments if a claimant disposes of assets at less than fair market value. VA states that one of the purposes of this rule is to deter financial planners who currently market financial products to help VA claimants evade the income and net worth limits for VA pensions eligibility. As of July 2017, this rule was undergoing supervisory review within the Veterans Benefits Administration after a period of public comment.

    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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