GAO Releases Report Critical of VA’s Accreditation Oversight
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At the end of August, 2013, the GAO (Government Accountability Office) released its year-long investigation into the accreditation practices of the Office of General Counsel – a division of the Department of Veterans Affairs. Accreditation is a government license necessary to assist veterans with their claims. Without this authority, no one may assist a veteran in the preparation, presentation or prosecution of a claim for veterans benefits. The report from the GAO – commissioned by 4 senators who are responsible for veteran’s issues in the Senate – is highly critical of the oversight provided by the Office of General Counsel in granting accreditation authority and in administering ongoing accreditation requirements as well as the handling of complaints relating to individuals who are or who are not accredited.
The report concludes that the Office of General Counsel and VA should take steps to address the following concerns:
1. 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.
2. Strengthen initial and continuing knowledge requirements for accreditation for all types of representatives.
3. 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.
4. 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.
VA generally concurs with the GAO that these issues need to be addressed and in some cases the department will be taking corrective action to provide better oversight. Of particular concern to accredited attorneys and accredited agents at this point are the following actions that VA may initiate in the near future.
- Doing a better job of conducting background investigations for applications for accreditation from attorneys and agents.
- Working through the current backlog of yearly certifications of good standing and taking corrective action towards those who are not in good standing or who have not submitted their certification.
- Working on a solution to notify agents and attorneys who are deficient in completing CLE to provide proper notification and follow-up action. VA does keep track of those individuals completing CLE but does not notify those who are deficient. In addition VA does not notify or identify anywhere on its website those individuals who have submitted CLE or acknowledge compliant completion of their training.
- Looking at better training for attorneys and agents in order to make them more effective in representing claimants. A major complaint about attorneys and agents is that most are deficient in the knowledge to adequately handle all types of claims. Veterans service organizations, in particular, complain about the number of claim questions they regularly receive from accredited attorneys and accredited agents.
- Coming up with a better system of notifying claimants of their right to complain about representation and about the unlawful charging of fees. VA will most likely pursue congressional legislation to put teeth into its ability to punish accredited individuals who are not compliant and go after non-accredited individuals who are taking advantage of veterans.
Everyone should be aware that the Office of General Counsel generally recognizes that attorneys can charge a pre-filing consultation fee that is related to a claim but is not a part of the preparation, presentation and prosecution of a claim. The OGC allows that any accredited attorney or agent may charge a fee for any services not related to assistance with a claim. Of course, accredited attorneys and accredited agents can charge a reasonable fee for assistance after a notice of disagreement has been filed or if they are engaged for a fee to provide an initial claim by a disinterested third-party. Claim representatives of veterans service organizations are absolutely prohibited from charging any fee of any kind.
It should be noted, however, that the Office of General Counsel will generally go after any accredited individual who charges a fee that is ostensibly not related to a claim but is contingent upon filing a claim. For example, a supposedly non-related fee that would only be charged if a claim were successful or a fee that is refunded if the claim is not successful would be considered a fee for the preparation, presentation and prosecution of a claim.
The Senior Veterans Service Alliance has taken a position to help VA notify attorneys and agents of their need to submit the required yearly certification of good standing. A free form designed by the SVSA is found on its website and instructions are provided on how to fill out and submit the form to the Office of General Counsel. As a free service, the SVSA will notify all accredited attorneys and agents on their yearly anniversary of accreditation of the need to provide the certification and will provide a link to the free certification form with instructions.
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