[Congressional Record Volume 168, Number 128 (Monday, August 1, 2022)]
[Senate]
[Pages S3797-S3799]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Democratic Party
Mrs. BLACKBURN. Madam President, Joe Biden and the Democrats have
ushered us into what will be remembered as one of the most cynical and
dangerous periods in our Nation's history. For 18 months, they have
wreaked havoc on the economy, welcomed drugs and crime into their own
backyards, and enabled the rise of the new axis of evil, which is my
term for Russia, China, Iran, and North Korea.
Last week was really a particularly bad week for the Biden-Harris
administration, but it was even worse for the people watching it play
out, sitting at home in their communities. Inflation hit a 41-year
high, consumer confidence hit a historic low, and we confirmed that the
American economy is indeed in a recession.
But rather than taking responsibility, my Democratic friends decided
they would go on an all-out campaign and redefine the word
``recession,'' and they insisted that the economic ruin that they have
rained down on us all is in our imaginations. The economy is in great
shape, they say. It is better than ever, they say. But Tennesseans
sitting at their kitchen table, trying to figure out how to make ends
meet, they know different.
If ever there were a time to listen to what the American people are
telling each and every one of us, it is now. Yet here we are facing now
what is possibly the Democratic Party's most cynical and dangerous move
to date: a trillion-plus--a trillion-plus-dollar spending spree. It is
full of tax increases and policies so unpopular that its negotiators
had to hide its existence from our own colleagues.
Chuck Schumer and Joe Manchin have dubbed this secret plan--I guess
is what it was--they have dubbed it the Inflation Reduction Act, which
immediately brings to mind one simple question: How out of step can you
possibly be with where the American people are? You are so out of step.
And do you truly think that the American people are so stupid that they
think raising taxes is going to bring a reduction in inflation?
If the situation weren't so dire for people back in Tennessee, I
would assume this was some sort of joke, but it is not. The American
people are drowning, and Chuck Schumer and Joe Manchin have thrown them
a cinder block instead of a life preserver. People cannot believe this.
They absolutely cannot believe this.
This bill represents the worst elements of a radical socialist agenda
that Americans have already rejected: a multihundred-billion-dollar tax
hike that will kill tens of thousands of jobs, sabotage energy
producers, and make it even more expensive to heat homes and fill gas
tanks; a multihundred-billion-dollar payday for climate activists and
the environmental lobby; innovation-killing price controls on
prescription drugs; and tax breaks, but only for the wealthiest
Americans.
Nothing in this bill will make life easier. Nothing in this bill will
lower gas prices or reduce inflation. But it is exactly what
Tennesseans were afraid would happen if Joe Biden and the Democrats
took control of the Federal Government.
This week, every Member of this body has a choice to make: Will you
stand with the American people, or will you make their life harder
every day because of more spending, more tax increases, and more Green
New Deal? Will you ease their pain, or will you make their pain worse
by supporting this bloated, foolish spending spree?
I hope that my colleagues will come to their senses because this is a
breaking point between Congress and the American people.
I cannot tell you how many times I heard that very statement this
weekend from Tennesseans. They cannot even believe another trillion
dollars in spending--another trillion. Money does not grow on trees.
If you, as an individual who has a vote on this bill, if you choose
to support this bill and tax and spend this country into oblivion, that
is a road that you are going to have to go down alone because the
American people cannot afford to go down this road with you.
PACT Act of 2022
Madam President, the Democratic press machine has done a great job
framing the debate over much needed changes to the PACT Act as an
attack on our most vulnerable veterans. This framing ignores reality.
I supported the PACT Act. I voted for final passage last time around.
I have worked for years on the issue of toxic exposure. I intend to
vote for the bill again, so do many of my colleagues who have joined me
in still pushing for critical improvements to this bill.
Before we vote on final passage this week, I would ask my colleagues
one question: Why wait to fix the problems we all know will hamper the
effectiveness of this bill? Why not fix the PACT Act now and ensure
that veterans actually have access to the care they deserve once this
bill leaves the President's desk with his signature? That is the real
choice here.
Now, I know my Democratic colleagues are on a tight timeline. They
want this thing done. They want it done before the elections. They want
this signed. They want to get out there and campaign on this. They want
us just to move on and not have to fix it until later.
But it is not my job to make Chuck Schumer's life easier or those
running for election, to make their lives easier. It is my job to be
certain that I represent these veterans in Tennessee who have given
their commitment to defend this Nation. They have done it honorably.
They have done it expecting care from the VA for harms that have come
their way. And we should make certain that they have access to the care
that they need.
The PACT Act in its current form is not the best that we can do, but
we can get it there in a few more hours with a few amendments that
would make sure this bill can help veterans suffering from the effects
of toxic exposure and help them get the care that they deserve.
And I want to make it clear that Senator Schumer and Chairman Tester
know this. The majority of my colleagues who sit with me on the
Veterans' Affairs Committee support a vote on these amendments, so much
so that, at one point, we had all agreed to give these amendments a
vote because we all know that the VA is not capable of implementing
this bill as it is currently written.
The VA cannot deliver on the promise that is in this bill. In fact,
it will do the exact opposite. Right now, the claims backlog at the VA
sits at 168,000 cases. You heard me right on that--168,000 cases. That
is the current backlog.
The PACT Act, as written, will increase that backlog by more than--
get this--1 million cases--1 million. That is not according to me. That
is according
[[Page S3798]]
to the Biden-nominated, Senate-confirmed VA Secretary Denis McDonough.
Here is what he told us in testimony delivered to the committee on
March 29, 2022:
Estimates from VA's initial technical assistance . . .
demonstrated a potential backlog increase to 1.5 . . .
million claims by the end of fiscal year . . . 2023.
Madam President, I ask unanimous consent to have Secretary
McDonough's testimony printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Title II: Toxic Exposure Presumption Process
summary
Title II, called the Fairly Assessing Service-related Toxic
Exposure Residuals Presumptions Act, or the FASTER
Presumptions Act, would create new provisions in chapter 11
of title 38, U.S.C., regarding determinations relating to
presumptions of service connection based on toxic exposure.
The new 38 U.S.C. Sec. 1171 would establish the process by
which VA could establish or modify presumptions of service
connection based on toxic exposures.
The new 38 U.S.C. Sec. 1172 would establish a Formal
Advisory Committee on Toxic Exposure.
VA could consult with, and seek the advice of, the
Committee with respect to cases in which Veterans are
suspected of having experienced a toxic exposure during
active service or dependents of such Veterans.
The Committee would have to assess cases of toxic exposures
of Veterans and their dependents by conducting ongoing
surveillance and reviewing scientific literature, media
reports, information from Veterans and information from
Congress. These assessments would cover suspected and known
toxic exposures.
The Committee also would be responsible for periodically
assessing the accuracy of the Individual Longitudinal
Exposure Record (ILER) and the data collected.
The Committee could develop a recommendation for formal
evaluation under the new 38 U.S.C. Sec. 1173 to conduct a
review of the health effects related to an exposure if the
Committee determines that the research may change the current
understanding of the relationship between an exposure to an
environmental hazard and adverse health outcomes in humans.
Based upon evidence regarding the periods and locations of
exposure covered by an existing presumption, the Committee
could nominate for formal evaluation under new 38 U.S.C.
Sec. 1173 modifications of the periods and locations for
eligibility for benefits.
The new 38 U.S.C. Sec. 1173 would require VA to establish a
process to conduct a formal evaluation for each
recommendation of the Committee established under proposed
Sec. 1172.
Under this process, VA would have to conduct research
regarding the health effects related to a case of toxic
exposure or to evaluate evidence regarding the periods and
locations of exposure covered by an existing presumption of
service connection.
Each formal evaluation would have to cover scientific
evidence, claims data and other factors as VA determined
appropriate.
The formal evaluations would have to evaluate the
likelihood that a positive association existed between an
illness and a toxic exposure while serving in active service
and assess toxic exposures and illnesses to determine whether
the evidence supported a finding of a positive association
between the toxic exposure and the illness.
Not later than 120 days after a formal evaluation is
commenced, the element of VA that conducts the evaluation
would have to submit to the Secretary a recommendation with
respect to establishing a presumption of service connection
for the toxic exposure and illness, or modifying an existing
presumption of service connection, covered by the evaluation.
The new 38 U.S.C. Sec. 1174 would require VA to commence
issuing regulations if the Secretary determines, based on a
recommendation under Sec. 1173, that the presumption or
modification is warranted or to notify the public that the
presumption or modification is not warranted. If VA removed a
presumption, Veterans and other beneficiaries who were
receiving benefits based on that presumption would continue
to receive such benefits.
The new 38 U.S.C. Sec. 1175 would allow VA to modify the
process under which it conducts formal evaluations under
Sec. 1173 and issues regulations under Sec. 1174.
VA would have to ensure the new evaluations cover the
evidence, data and factors required by Sec. 1173(b).
VA would have to notify Congress and wait 180 days before
implementing such changes.
VA also would have to seek to enter into an agreement with
a nongovernmental entity or a Federally funded research and
development center to conduct a review of the implementation
of this subchapter.
The new 38 U.S.C. Sec. 1167 would require VA, whenever a
law, regulation or Federal court decision established or
modified a presumption of service connection, to identify all
previously denied claims that were submitted to VA that might
have been decided differently had the presumption been in
effect at the time of the application.
VA would have to allow for the re-evaluation of such claims
at the election of the Veteran.
Notwithstanding 38 U.S.C. Sec. 5110, VA would have to
provide compensation with respect to claims approved pursuant
to such reevaluation based on the date of the submission of
the original claim.
VA also would have to conduct outreach to inform relevant
Veterans they may elect to have a claim re-evaluated under
this authority.
This section would apply to presumptions of service-
connection established or modified on or after the date of
enactment.
Title II also would amend 38 U.S.C. Sec. 1116 to require VA
to ensure that any determination made on or after the date of
enactment regarding a presumption of service connection based
on exposure to an herbicide agent under this section would
be made pursuant to the new authorities described
previously.
In addition, title II would require VA to submit to
Congress:
Not less frequently than annually, a publicly available
report on recommendations for research and any
recommendations for legislative or administrative action from
the Committee established under Sec. 1172; VA would have to
submit a publicly available report on the findings and
opinions of VA with respect to the Committee's report.
Within 2 years of enactment, a report on the implementation
of, and recommendations for, the new Sec. Sec. 1171-1175. On
a quarterly basis during the 2-year period beginning on the
date of enactment, VA would have to provide to Congress a
briefing on the implementation of these provisions.
Within 540 days of enactment, a report containing the
review by the nongovernmental entity or Federally funded
research and development center on the implementation of the
new Sec. Sec. 1171-1175.
impact on care and benefits
As the President said in the State of the Union earlier
this month, VA already is pioneering new ways of linking
toxic exposures to diseases, thus helping more Veterans
receive their benefits. Based on a focused review of
scientific and medical evidence related to exposure to fine
particulate matter and the subsequent development of rare
respiratory cancers, VA recently announced its intention to
initiate rulemaking that would consider adding presumptions
of service connection for several rare respiratory cancers
for certain Veterans. This announcement follows VA's
rulemaking action last year establishing a presumption of
service connection for three chronic respiratory conditions,
including asthma, rhinitis and sinusitis.
We appreciate that the bill, as passed, includes changes
made in collaboration between VA and the House Committee on
Veterans' Affairs. For example, removal of the Science Review
Board and Working Group on presumptions of service connection
would allow VA to implement an efficient, science-driven
process. We are concerned, though, that the creation of a new
Committee, particularly one subject to the Federal Advisory
Committee Act, would likely slow existing mechanisms for
proposing and conducting research.
Rather than using an advisory committee that would create
significant administrative burdens and slow down the
presumptive decision-making process, we recommend Congress
consider requiring VA to publish in the Federal Register an
annual list of conditions the Department plans to evaluate
under VA's presumptive decision model, explain why the
conditions were chosen for evaluation and seek input from the
public on that list. This approach would enable transparency,
intentionality and allow for public participation. It also
would allow for a timelier decision-making process. We
further recommend that Congress establish clear effective
dates indicating when the proposed changes would take effect.
VA recommends that sufficient time be given to allow it to
implement this authority based on a variety of factors,
including the regulatory development and public comment
process, as well as the significant implementation
requirements and dependencies (such as staffing and
resources) associated with the bill as a whole.
We also are concerned that the current bill text is
ambiguous, notwithstanding the four ``strength of evidence''
categories listed in proposed Sec. 1173, as to when a
presumption is warranted. It remains unclear whether Congress
intends for the Secretary to adopt the recommendations from
the bill's proposed process as a matter of course. If
Congress intends to allow VA to determine the applicable
standards for creating a presumption, it would be helpful to
make that clear and to provide specific guidelines for when
VA must create or modify these presumptions. For example, if
the strength of evidence for a particular condition falls in
the category of ``equipoise and above,'' it is unclear
whether the Secretary would be required to establish a
presumption or if the Secretary would have discretion in
those instances. If Congress intends any specific, triggering
standards governing these determinations, it would be helpful
to clarify such standards in the bill. The court orders in
the long-standing, complex class action litigation in Nehmer
v. U.S. Dep't of Veterans Affairs (Nehmer) were based on a
finding that, in creating presumptions based on herbicide
agent exposure, VA applied standards inconsistent with
Congressional intent. It would be helpful for the Committee
to clarify Congressional intent on this point to avoid
similar consequences with respect to this bill.
[[Page S3799]]
The new Sec. 1167 would impose a Nehmer-type effective date
mechanism for new presumptions. We want to be clear to the
Committee, though, that applying a Nehmer-like retroactive
effective date provision in this instance would create a
significant exception to the legal structure governing
Veterans' benefits. Applying this standard makes it difficult
to predict the consequences of this type of effective date
provision. VA would be required to apply the provision in
this new authority not only to the presumptions created in
this bill but also to any future presumptions created by
regulation, statute or court order. This requirement would
present extraordinary workload challenges to the agency and
unprecedented delays in the delivery of benefits to Veterans.
For example, every previously denied claim for any of the
presumptive conditions identified in or contemplated by this
bill (out of the nearly 3.5 million Gulf War-deployed
Veterans) would now be subject to a retroactive effective
date as far back as 1991 for Gulf War I Veterans and 2001 for
Global War on Terrorism Veterans.
We would welcome the opportunity to work with Congress to
ensure that new authorities in this area support our ongoing
work to help us make informed decisions as quickly as
possible.
costs and resources
VA is concerned that an extremely large and unprecedented
disability claims backlog would be created if the Nehmer-like
provisions in this bill are retained. Based on VA's previous
experience in implementing similar retroactive effective date
provisions, we understand this provision would result in
complex and time-intensive claims processing procedures. In
this case, claims processors would be required to review 20
to 30 years of evidence for a single issue. Considering that
more than 1.9 million Gulf War-era deployed Veterans have
filed disability claims in the past 30 years (over 900,000 of
whom filed claims for respiratory issues), VA is very
concerned about the impact of this provision. VA claims
processors would be required to re-adjudicate hundreds of
thousands of previously denied claims for earlier effective
dates. Estimates from VA's initial technical assistance,
without this provision, demonstrated a potential backlog
increase to 1.5 and 1.8 million claims by the end of fiscal
year (FY) 2023. Any further application of retroactive
presumptions would drive further benefit delivery delays for
all Veterans.
research
Title II would establish a new Committee and institute new
processes related to the identification of and support for
research related to toxic exposures. As noted previously, we
are concerned some of the specific provisions in this title
would prove more onerous and less nimble than our current
approach.
Mrs. BLACKBURN. Now, the reason I have paid so much attention to this
backlog is because every single week the team that works with me in
Tennessee handling these issues with our VSOs--our veterans service
officers--keeps track of what we hear from the veterans.
Right now in Tennessee, I have veterans telling me they are waiting
almost 100 days for a primary care appointment at the VA. Now, for many
vets, this is just step 1. So once they contact the VA, it is 100 days.
Think about that: 100 days before they get that primary care
appointment, and that is if the appointment doesn't get canceled or it
has to be rescheduled. So that is an average to get to step 1--first
step.
Across Tennessee, veterans are waiting yet another 39 days to get
mental healthcare. Now, if they are needing dental appointments, dental
surgery, or dental care, that is 44 days. If they go for that primary
care appointment and they need to go see a cardiologist, that is 33
days; 28 days to see a gynecologist; 30 days to go talk to someone
about chronic pain.
Look at what is happening. The VA cannot meet the load in front of
them. Our veterans--our veterans who have defended our Nation's
freedom--cannot get the care they need in a timely manner.
Now, we have done a lot of work over the years to help the VA help
itself. We have given them support for hiring. We have given them
support for retention. But, Madam President, it takes 90 days for this
Agency, the VA, to hire one person--90 days. And think of the number of
caseworkers they would have to hire to implement this. Throwing money
at the problem isn't going to make these wait times and backlogs
disappear.
It is imperative that we fix the PACT Act so it is not a false
promise, so it is not false hope. If the PACT Act is going to work for
our veterans, then the VA needs to embrace community care.
I proposed an amendment to the bill that would have eliminated
arbitrary bureaucratic hurdles for toxic-exposed veterans who will
inevitably face these long wait times. It would allow them to seek care
in the community right there where they live if they could get it
faster than they could from the VA.
I offered this amendment based on my conversations with Tennessee
veterans who are chronically ill but cannot get in to the VA to see a
doctor and get that primary care appointment so they can move on to
specialty care. Many of them are deteriorating at an alarming rate, and
they deserve access to care as soon as they can get it. The only way
that access to care for them is going to happen is if we allow them
community care. They have fought for this country. They deserve to have
access to that care, but right now, they cannot get it.
Madam President, I know you more than most understand how imperative
it is for veterans to have access to the care they need, that this
government make good on its promise to our veterans, that we stop these
long wait times, that we stop the delays, and that we allow them that
access that they have earned and that they deserve.
There is a way to fix this bill. I know there are some who say: Well,
we are afraid this will privatize the VA. That is their fear, and I
understand that. But at some point, veterans want us to take that
action to put them first--not the bureaucracy first, put the veterans
first--allow the veterans to make that choice if they cannot get to the
VA in a timely manner. If the VA can't get them in for an appointment,
let's open this up and let the veterans out into community care so
their needs can be met in a timely manner.
A promise in a piece of legislation ought not to end up as a false
hope when it comes to our Nation's veterans. The best way we can
fulfill our promise to toxic-exposed veterans is to give this bill the
time it needs for an amendment that will allow our veterans to access
the care they need without having to wait on the VA to figure out how
to implement this bill.
Surely, surely, we can do this. Let's have a vote on these amendments
and fix this bill before it is signed into law.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. SULLIVAN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.