Telemental Exams by Private Practitioners: VA's Ambiguous Guidance Causes Confusion

Does VA accept telemental1 exams conducted by private (non-VA) psychologists and psychiatrists?

Many veterans, attorneys, and mental health clinicians have assumed that videoconference interviews with veterans were acceptable, provided the psychologist followed applicable state laws2 and specific requirements outlined in VBA's M21-1 Adjudication Procedures Manual.3

However, a recent VA Office of Inspector General (VAOIG) report indicated that "[t]he use of private provider telehealth examinations for rating purposes is prohibited."4

This conclusion by the VAOIG probably came as a surprise to many stakeholders because public VA guidance on this topic has been—and still is—ambiguous5 and confusing.


Table of Contents


VAOIG Report Raises Several Questions & Concerns

The VAOIG report raises the following questions and concerns:

(1) VBA will probably require veterans to submit have a new C&P exam if they began receiving service-connected disability benefits, or received an increased disability rating, as a result of an allegedly "illegal" or "unwarranted" telemental health exam.

If that happens some veterans will lose service-connected disability benefits previously awarded.

Even if a new C&P exam confirms the original disallowed exam, will the effective date be the date the veteran filed his or her claim, or the date of the new exam?

Some "exams", e.g., those conducted via telephone (as opposed to videoconferencing) or where the psychologist had not satisfied out-of-state licensing requirements, should not be considered valid.

However, if the psychologist satisfied out-of-state licensing requirements and used videoconference methods consistent with M-21, III.iv.3.D.2.c, why should veterans be penalized because of VA's equivocal language? 

(2) Did VA circumvent requirements for public comment by establishing a new rule via the M-21 Manual instead of by the usual procedure, i.e., publishing a proposed rule in the Federal Register?

(3) VBA does not provide clear guidance to private psychologists who conduct IMEs (independent medical exams) or IPEs (independent psychological exams) at the request of veterans or their representatives. Why should psychologists who otherwise followed the rules be penalized because of VA's ambiguous language?

(4) Many federal agencies do not take the Plain Writing Act seriously. The confusion caused by VA's vague language in M-21, III.iv.3.D.2.c demonstrates the deleterious results that ensue in the wake of such neglect.

(5) Why hasn't VBA revised M-21, III.iv.3.D.2.c to eliminate ambiguity?

Signs pointing to confusionVA's telemental exam guidance is unclear and confusing.

Key Points

* Although the primary purpose of the M21-1 Adjudication Procedures Manual is to assist Veterans Benefits Administration (VBA) staff, several constituencies6 consult the Manual to understand VBA policies and procedures.

* Thus, VBA cannot legitimately claim that the Manual's content does not apply to anyone other than VBA staff.

* Veterans have a right to submit IME or IPE findings to support their claim. Consequently, VA has an obligation to provide clear, comprehensible guidance regarding independent examinations.

* The Manual's guidance for telemental exams continues to evince murky, equivocal prose.

* Veterans may suffer as a result of VBA's original error (vague, confusing guidance) and the agency's subsequent obscurantism.8,9



VA's Vague Telemental Exam Guidance

Here is what VA says about telemental exams in the Veterans Benefits Administration M21-1 Adjudication Procedures Manual:


III.iv.3.D.2.c. Telehealth and Telemental Health Examinations

When VHA elects to conduct a videoconference examination (or telehealth/telemental health examination) in lieu of an in-person examination, assess the report for sufficiency under the same standards applicable to in-person examinations.
  
Important
  • A telehealth or telemental health examination report is only acceptable and actionable for rating purposes when prepared by a VHA or VBA-contracted examiner.  Decision makers must not accept in lieu of VA examination any DBQ that has been
    • prepared by a non-VA provider, and
    • completed by means of telephone or videoconference examination.
  • A mental health DBQ submitted by a private provider and based on a telephone interview with a Veteran is not acceptable or actionable for rating purposes under any circumstances.  VHA has determined that, in order to assess a Veteran’s mental health via telemental protocol, examiners must be able to
    • see clearly, and
    • fully appreciate all non-verbal cues, mannerisms, and manifestations displayed by the Veteran in a manner on par with an in-person examination.
Reference:  For more information on telehealth and telemental health examinations, see the Office of Disability and Medical Assessment (DMA) Expansion of Telehealth for Compensation and Pension (C&P) Examinations Fact Sheet. [Note: The blue text is hyperlinked on the VA website for the M21-1 Manual. However, the link goes to the VA intranet, which you can access only if you are a VA employee.]


You probably recognized several problems with that section, particularly its imprecise, uncertain, and confusing language.

However, VBA will probably say that it's not their fault if you do not understand the section, because it is clear to them.

I will therefore explain why the section's equivocal10 prose causes confusion, and how VA could have avoided this vexing problem if they had honored their commitment to the Plain Writing Act of 2010.

In fact, I will use recommendations from the Federal Plain Language Guidelines to itemize the problems with VBA's current telemental exam guidance, and to offer suggested revisions to that guidance.



Plain Language

"Plain language makes it easier for the public to read, understand, and use government communications." - PlainLanguage.gov


Congress passed the Plain Writing Act of 2010 to promote "clear Government communication that the public can understand and use."11

The Act describes plain writing as "... writing that is clear, concise, [and] well-organized ...."

The U.S. government website, PlainLanguage.gov states that "plain language (also called plain writing or plain English) is communication your audience can understand the first time they read or hear it."

What's Wrong with the Current VBA Telemental Exam Guidance: A Plain Language Analysis

As noted earlier, VBA might say something like this: "The M21-1 Manual is written for our professional staff—RSVRs and higher—many of whom have earned Master's and Doctoral degrees in law, social sciences, and other disciplines."

That is a true statement. VBA staff are the primary audience for the M21-1 Manual and they are highly educated.12 But they are not the only audience.

* Although the primary purpose of the M21-1 Adjudication Procedures Manual is to assist Veterans Benefits Administration (VBA) staff, several constituencies6 consult the Manual to understand VBA policies and procedures.

* Thus, VBA cannot legitimately claim that the Manual's content does not apply to anyone other than VBA staff.

* The Manual is the only guidance VA provides regarding IMEs (independent medical examinations) and IPEs (independent psychological examinations).

* Veterans have a right to submit IME or IPE findings to support their claim. Consequently, VA has an obligation to provide clear, comprehensible guidance regarding independent examinations.

As it turns out, the very first recommendation in the Federal Plain Language Guidelines addresses this point.13


Know Your Audience

“The first rule of plain language is: write for your audience. ... Make sure you know who your audience is – don’t guess or assume.” - Federal Plain Language Guidelines (p. 1)

As noted earlier, several stakeholders regularly consult the M21-1 Adjudication Procedures Manual:

  • veterans and their families;
  • veterans service officers;
  • veterans service organizations;
  • veterans law attorneys;16
  • Board of Veterans Appeals judges and staff attorneys;14
  • Court of Appeals for Veterans Claims judges and staff;15
  • independent experts;16 and
  • U.S. Senators and Representatives and their staff, particularly on the Veterans' Affairs Committees.

Therefore, VBA should either write separate guidance for each group of stakeholders, or write guidance in a manner accessible and understandable to all constituents. 

I should emphasize that even if VBA staff were the only audience, the Telemental Exams section of the M21-1 Manual still needs revision to prevent confusion and uncertainty.



Know Your Audience: Questions to Ask Before Writing

The Federal Plain Language Guidelines recommends answering the following questions before writing. I will use these questions to highlight problems with M-21, III.iv.3.D.2.c and to suggest solutions to eliminate those problems.

Who is my audience?  - Several stakeholders regularly consult the M21-1 Adjudication Procedures Manual:

  • veterans and their families;
  • veterans service officers;
  • veterans service organizations;
  • veterans law attorneys;16
  • Board of Veterans Appeals judges and staff attorneys;14
  • Court of Appeals for Veterans Claims judges and staff;15
  • independent experts;16 and
  • U.S. Senators and Representatives and their staff, particularly on the Veterans' Affairs Committees.

What does my audience already know about the subject? - Veterans, and many other stakeholders, know that VA provides telehealth care to tens of thousands of veterans every year. Therefore, these stakeholders understandably assume that telemental exams by independent psychologists are permissible.

What does my audience need to know? - Only VHA and VBA-contracted examiners may conduct videoconference C&P exams (telemental health exams). 

What questions will my audience have? - "I read on Facebook about a veteran-owned business that will complete a DBQ for me to support my claim for an increase. This company said a psychologist will interview me via the Zoom videoconference service, and then complete the DBQ for me. They charge $600. Will VBA consider this DBQ as evidence to support my claim?"

What’s the best outcome for my agency? - Receive a very small number of DBQs completed by independent psychologists (or other mental health clinicians) who interviewed the veteran by telephone or videoconference service. 

What do I need to say to get this outcome? - Decision makers must not accept any DBQ that has been prepared by a non-VA provider, and completed by means of videoconference examination. VBA accepts Review PTSD, Initial Mental Disorder, and Review Mental Disorder DBQs from non-VA providers only if the non-VA examiner conducted an in-person exam.

What’s the best outcome for our audience? - (a) Veterans do not spend money on exam reports (DBQs) which VBA cannot consider as evidence to support the veteran's claim.

(b) Veterans law attorneys, claim agents, and veterans service officers give their clients accurate advice regarding independent psychological exams, e.g., that the exam must be conducted in-person by a psychologist licensed in the State where the exam takes place.

(c) Psychologists understand that VBA cannot consider telemental (videoconference) exam results as evidence to support a veteran's claim. 

What do I need to say to get this outcome? - Please see Recommended Copy Edits to Eliminate Ambiguity (below).


Recommended Copy Edits to Eliminate Ambiguity

The PDF file below contains my suggested copy edits to eliminate ambiguity in:

Telehealth and Telemental Health Examinations, M21-1 Adjudication Procedures Manual, pt. III, subpt. iv, chap. 3, sec. D, no. 2, subsec. c (rev. Feb. 19, 2020).

The PDF has three sections:

(α) M-21, III.iv.3.D.2.c—Current - The section as it is today.

(ß) M-21, III.iv.3.D.2.c—Suggested Revision (edits) - My suggested changes, showing the edits using strikethrough and green text for additions.

(Γ) M-21, III.iv.3.D.2.c—Suggested Revision (clean) - A "clean" version of my suggested changes, i.e., without any editing notations.

Here is that PDF file, which you can read online or download:

Eliminate-Ambiguity-in-M-21-III-iv-3-D-2-c-Telemental-Exams.pdf


Plain Language Version of M-21, III.iv.3.D.2.c (Telemental Exams)

Immediately below is my Suggested Revision for the M21-1 Manual section on telemental exams. (It's also in the PDF, but I am including here because for some visitors it's easier to read it online—it can be a challenge to access and read a PDF on some devices). 

Please remember that what you see below is not the current text for M-21, III.iv.3.D.2.c (Telemental Exams).

What you see below is my Suggested Revision for M-21, III.iv.3.D.2.c.

I followed the Federal Plain Language Guidelines when writing this Suggested Revision.
 


M-21, III.iv.3.D.2.c—Suggested Revision

III.iv.3.D.2.c. Telehealth and Telemental Health Examinations

When a VHA or VBA-contracted examiner elects to conduct a videoconference examination (or telehealth/telemental health examination), assess the report for sufficiency under the same standards applicable to in-person examinations.

Important:

  • A telehealth or telemental health examination report is acceptable and actionable for rating purposes only when prepared by a VHA or VBA-contracted examiner.

  • Decision makers must not accept any DBQ that has been prepared by a non-VA provider, and completed by means of videoconference examination.

    VBA accepts Review PTSD, Initial Mental Disorder, and Review Mental Disorder DBQs from non-VA providers only if the non-VA examiner conducted an in-person exam.

  • PTSD and other mental disorder exams conducted via telephone or other audio-only technologies are not acceptable and actionable for rating purposes under any circumstances.

    This prohibition does not apply to the rare occasion when an examiner needs to call a Veteran to clarify a detail or two. Such telephone calls should be fully documented in the exam report.

Reference:  For more information on telehealth and telemental health examinations, see the Office of Disability and Medical Assessment (DMA) Expansion of Telehealth for Compensation and Pension (C&P) Examinations Fact Sheet (VA intranet).

Note: While VA prohibits conducting PTSD and other mental disorder exams via telephone, this prohibition does not apply to several other exam types under the Acceptable Clinical Evidence (ACE) program.



Footnotes

1. VA uses the terms telemental and telemental health interchangeably. Similar terms include telepsychology, telemedicine, videoconferencing, and telehealth.

2. Each U.S. state, federal district, or territory establishes laws (statutes, regulations, and case law) governing the practice of healthcare service provider psychologists. Many states have developed regulations regarding telepsychology–the provision of psychological services via videoconferencing, and most states have provisions allowing out-of-state licensed psychologists to temporarily provide psychological services in-state. But these laws vary widely. For example, Michigan does not have a statute or regulation governing the practice of psychology by psychologists licensed in another state. If a psychologist wishes to provide psychological services in Michigan, even if for only an hour, the psychologist must become licensed in Michigan.

3. Veterans Benefits Admin., Dep't Veterans Aff., Examination Report Requirements: Telehealth and Telemental Health Examinations, M21-1 Adjudication Procedures Manual, pt. III, subpt. iv, chap. 3, sec. D, no. 2, subsec. c (rev. Feb. 19, 2020).

4. Off. Inspector Gen., Dep't Veterans Aff., Rep. No. 19-07119-80, Telehealth Public-Use Questionnaires Were Used Improperly to Determine Disability Benefits 2 (Feb. 18, 2020)  https://www.va.gov/oig/pubs/VAOIG-19-07119-80.pdf

5. Oxford English Dictionary, 3rd ed. (March 2020), Oxford, England, UK: Oxford University Press, https://www.oed.com/view/Entry/6145 ("ambiguousadj1. a. ... having different possible meanings; open to more than one interpretation ... 2. b. Not clearly defined; indistinct; imprecise"); see also Gove, Philip B., ed., Webster's Third New International Dictionary, Unabridged (1961, rev. 2016), https://unabridged.merriam-webster.com/unabridged/ambiguous ("ambiguousadjective ... a: able to be understood in more than one way : having more than one possible meaning ... <an ambiguous term>  b: doubtful or uncertain especially from obscurity or indistinctness ... :  not perceived or understood clearly ...").

6. These constituencies include:

  • veterans and their families;
  • veterans service officers;
  • veterans service organizations;
  • veterans law attorneys;
  • Board of Veterans Appeals judges and staff attorneys;
  • federal courts;
  • independent experts; and
  • U.S. Senators and Representatives and their staff, particularly on the Veterans' Affairs Committees.

7. If accurate, VBA's thinking went something like this: "If we rewrite the telemental exam section then we will be admitting that it was poorly written and confusing. If we do not rewrite the section, then we can claim that it has been clear all along. If someone didn't understand it, they must be dense or something, because it's clear to us what it means."

8. Merriam-Webster.com ("obscurantismnoun - ... a policy of withholding knowledge from the general public").

9. See also Senator Wicker Asks an Important Question: VA Responds with Eloquent Obscurantism.

10. Merriam-Webster.com ("equivocal, adjective - 1 a : subject to two or more interpretations and usually used to mislead or confuse").

11. Plain Writing Act of 2010, Pub. L. 111–274, 124 Stat. 2861.

12. I should note that this section of the Manual (III.iv.3.D.2.c), suffers from vague, confusing language even for highly educated VBA staff.

13. The Federal Plain Language Guidelines includes advice on how to "identify your users and their top tasks" on page 93.

14. From 1992 through 2019, the Board of Veterans Appeals cited the M21-1 Manual 113,029 times.

15. From 1992 through 2019, the Court of Appeals for Veterans Claims cited the M21-1 Manual 4,034 times. I used the court's search engine with these search parameters: with the exact phrase: "M21-1"; anytime, any format, anywhere; Panel Opinions (yes); and Single Judge Decisions (yes).

16. I found over 100 academic articles that discuss the M21-1 Manual, mostly in law review articles. Method: I searched Google Scholar for "'M21-1' Manual veterans" (searching for "'M21-1' Manual" without "veterans" returns a lot of irrelevant results).



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