Response from MND: Service Attribution Follow-Up Jan 2018

Response from MND

 22 January 2018

 

Mr. Gary Walbourne
National Defence and
Canadian Armed Forces Ombudsman
100 Metcalfe Street, 12th floor
Ottawa ON K1P 5M1

 

Dear Mr. Walbourne:

Thank you for your letter of November 17, 2017, regarding your report entitled Determining Service Attribution for Medically Releasing Members.

Your goal of improving the transition of ill and injured members, with respect to the administration of their benefits, is shared wholeheartedly by the Canadian Armed Forces (CAF) and the Department of National Defence (DND) and is a personal priority for me. It forms a central theme in the new Canadian defence policy, Strong, Secure, Engaged (SSE), and a number of new initiatives are underway in support of this goal. However, consistent with previous reviews of this subject by the Surgeon General’s office, there is no plan for the CAF to take on the responsibility for determination of Attribution to Service- this remains a Veterans Affairs Canada (VAC) responsibility.

I am pleased to inform you that the Enhanced Transition Services and Records Disclosure Teams continue to function effectively, encouraging members to apply early for VAC benefits and facilitating faster transfer of medical and other records from CAF to VAC. To further enhance effective integration between CAF and VAC, and pursuant to specific direction laid down by the SSE, the CAF will establish a new Transition Group that will include integral medical advisory staff. Furthermore, the Canadian Health Services Group will be increased by 104 civilian medical personnel, principally case managers and occupational therapists, in support of transition activities. You will find enclosed a two-page document providing further details.

As for the report’s recommendation of having the CAF determine the CAF determine Attribution to Service, it was determined that this initiative would not help meet the goal of improving the transition of ill and injured members, and would introduce unnecessary difficulties, even if the CAF were properly trained and sufficiently resourced to perform this new role. The Ombudsman’s Report acknowledges that determining Attribution to Service can introduce ethical and professional complications that can adversely affect the doctor-patient relationship. Reference is made to the applicable Canadian Forces Health Services Group policy. Additional policy documents from the College of Family Physicians of Ontario and the Nova Scotia College of Physicians and Surgeons are enclosed.

The report that the ethical and therapeutic disruption is minimized by the fact that the member is soon to leave the CAF. However, it does not consider the significant number of members who are potentially eligible for VAC benefits by who are not on a path for release. Nor does it address cases where the Canadian Forces Health Services Group will be obliged to report negatively with respect to attribution, while at the same time trying to provide care to the ill or injured member, which may continue for three or more years before their release.

Moreover, determining Attribution to Service requires the joint analysis of medical records with employment information, something that the Canadian Forces Health Services Group will be unable to do independently. This analysis will need to be done jointly with VAC or some other not-yet-existent body within DND. As these administrative mechanisms already exist within VAC, duplicating them within CAF/DND would be inefficient and risks introducing inconsistencies between the two systems.

The position of the CAF and DND remains the same as it have since 2006. VAC should retain this responsibility and should strongly consider pursuing the industry standard for determining attribution, which is to use independent medical examiners. This is in the best interest of all parties: DND, VAC, and the ill and injured. The original briefing note from the Surgeon General to the Chief of Military Personnel dated July 27, 2007, provides a concise summary of this position. This position was echoed and amplified by the Surgeon General’s most recent briefing note dated June 21, 2016, on the subject. Both of these notes are enclosed.

As always, I appreciate your advice as we work together to improve the services available to our ill and injured.

Yours sincerely,

 

The Hon. Harjit S. Sajjan, PC, OMM, MSM, CD, MP

Enclosures: 4

Enclosure 1

Positional Paper On The Determination Of Attribution To Service For Medically Releasing Members: Follow Up

The Ombudsman’s goal of improving the transition of ill and injured members, with respect to the administration of their benefits, is a goal shared wholeheartedly by the Canadian Armed Forces (CAF) and the Department of National Defence (DND). If forms a central theme in the new Canadian Defence Policy “Strong, Secure, Engaged” (SSE). A number of new initiatives are underway in support of this goal. However, consistent with previous reviews of this subject by the Surgeon General’s office, there is no plan for the CAF to take responsibility for determination of Attribution to Service, which remains a VAC responsibility.  

The Enhanced Transition Services and the Records Disclosure Teams, which the Minister mentioned in his last letter to the Ombudsman on this topic (4 Aug 2016), continue to function effectively, encouraging members to apply early for VAC benefits and facilitating faster transfer of medical and other records from CAF to VAC. 

To further enhance effective integration between CAF and VAC, and pursuant to specific direction laid down by the SSE, the CAF will stand-up a new Transition Group, which will include integral medical advisory staff. Furthermore, the Canadian Forces Health Services Group will be augmented by 104 more civilian medical personnel, principally case managers and occupational therapists, in support of Transition activities. The enclosed 2-pager provides details.

Having the CAF determine Attribution to Service is unlikely to meet the goal of improving the transition of ill and injured members, and introduces unnecessary difficulties, even if the CAF were properly trained and sufficiently resourced to perform this new role. The Ombudsman’s Report acknowledges that determining Attribution to Service can introduce ethical and professional complications that can adversely affect the doctor-patient relationship. Reference is made to the applicable Canadian Forces Health Services Group policy. Additional policy documents from the College of Family Physicians of Ontario and the Nova Scotia College of Physicians and Surgeons are enclosed.

The report argues that the ethical and therapeutic disruption is minimized by the fact that the member is soon to leave the CAF. However, it does not consider the significant number of members who are potentially eligible for VAC benefits but who are not on a path for release. Nor does it address cases where the Canadian Forces Health Services Group will be obliged to report negatively with respect to attribution, while at the same time trying to provide care to the ill or injured member, which may continue for three or more years before release is effected.

Moreover, determining Attribution to Service requires the joint analysis of medical records with employment information, something that the Canadian Forces Health Services Group will be unable to do independently. This will need to be done jointly with VAC or with some other not-yet-existent body within DND. These administrative mechanisms already exist within VAC. Duplicating them within CAF/DND would be inefficient and risks introducing inconsistencies between the two systems.

The position of the CAF and the DND remains the same as it has since 2006. VAC should retain this responsibility and should strongly consider pursuing the industry standard for determining attribution, which is to use Independent Medical Examiners. This is in the best interest of all parties: DND, VAC and the ill and injured. The original briefing note from Surgeon General to the Chief of Military Personnel (27 Jul 2007) provides a concise summary of this position. This position was echoed and amplified by the Surgeon General’s most recent briefing note on the subject (21 Jun 2016). Both of these notes are enclosed.

Compiled by: SSO Surgeon General, NDHQ (Carling)

Enclosure 2

DND DEFENCE POLICY – INITIATIVE SUMMARY

SSE – Allocate some of the growth in the Medical Services branch to transition services

Initiative Horizon:   Implementation in Horizon One
Sponsor:                 CMP
Implementer:          CFHS in support of Transition Group 

Initiative Description

SSE 26 commits to allocating some of the growth in the Medical services Branch to support transition care. In order to better meet the needs of CAF members, continuing in service or transitioning to civilian life, the Canadian Forces Health Group (CF H Svcs Gp) will ensure expert advice and coordination of effort with the Transition Group (SSE 27). Two lines of operations (LOOs) are required to achieve optimal integration of health care and personnel support to ill and injured CAF members:

  • Alignment of health and personnel support policies and programs; and
  • Medical liaison and advice on complex individual cases.

A Medical Advisory Team (MAT) will be established with the mandate to 1) furnish health services expertise for policy and program development, and 2) provide timely and consistent advice to the Transition Group command element for the most complex files, in order to facilitate and expedite their successful return to duty (RTD or transition to civilian life. In addition, 108 new civilian personnel positions will be dedicated to support the Transition Group as follows; 48 new personnel positions as Clinical Case Managers (CCMS), 30 personnel positions to Records Disclosure Teams (RDTs) and 30 personnel positions as Occupational Therapists (OTs).

  • SSE reference

(26) Allocate some of the growth in the Medical Services Branch to support transition care;

(27) Seamlessly transition to post-military life of those who are ill or injured; create a new Canadian Armed Forces Transition Group that provides support to all members to seamlessly transition to post-military life.

The Defence Plan states that the Transition team will provide a fully engaged, personalized, guided support to the transition all CAF members, with special care and attention being provided to those who are ill or injured, including those with psychological or critical injuries. Collaborative, dedicated clinical care and personnel support is required to meet the goal of efficient and effective return to duty (RTD) or a seamless release.

Strategy Statement

The creation of a three-person MAT will be a CFHS-led initiative in support of the CAF Transition Group to facilitate the upcoming Transition Team functional trial in 2018. This team will facilitate staff coordination between the Transition Group and Directorates of Medical Policy, Mental Health and Health Services Delivery, and augment existing staff coordination between these health Services directorates and the Directorate of Compensation and Benefits Administration (DCBA). CFHS identified the need to augment the current healthcare system with the CCMs, RTDs, and OTs pre-SSE as part of previous year’s business planning cycle and has used contract services in the short term to provide additional services in key locations.

  • Interdependencies: Sufficient office space with appropriate IT services for this three-person advisory team is needed within the Transition Group command. SWE and O&E is required for growth of 108 civilian medical personnel to support transition group activities. ROM costs 33.5M

Rationale, Performance Measurement, DRF Linkage, GBA+ Consideration

Effective coordination of health services and personnel support requirements is essential to maximize the health, well-being and productivity of CAF members, especially those seriously ill or injured personnel returning to duty or transitioning to civilian life. A dedicated capability at the higher HQ level will provide expert HS support to the Transition Group’s management of complex cases. It will also augment and support the coordination of effort between the responsible Health Services and Personnel Support directorates. 

  • Key indicators of success:
    • Improved alignment of Health Care and Personnel Support policies and programs, and more efficient and effective subordinate processes;
    • Improved efficiencies in RTD and release processes, including transition to VAC support; and 
    • Better quality of care and support 

The creation of a MAT is directly linked to 4.1.8 of the PAA – Military Personnel Health Care and to 3.3 of the draft Defence Results Framework - Defence Team Health & Wellness. 

A GBA+ analysis will be completed to ensure suitable levels of representation exists for the various populations requiring HS support, both domestically and while deployed. The risk of GBA+ imbalance is low.

Nest steps / outstanding issues

  • The creation of three new military positions will require the support of Comd MPC and functional integration into SSE, Transition Group.

 

Prepared by : Director Health Services Delivery
Reviewed by : Director of Health Services Modernization
Reviewed by : Deputy Surgeon General 
Responsible DG : Director General Health Services 
Current Draft Date : 16 November 2017 

Enclosure 3

Third Party Reports

Reports by Treating Physicians and Independent Medical Examiners:

http://www.cpso.on.ca/cpso/media/uploadedfiles/policies/policies/policyitems/thirdparty.pdf

Enclosure 4

BN for CMP BPA REQUESTED MEDICALS

ISSUE

The ombudsman’s office is investigating a complaint that DND/CAF physicians, by not providing medical reports in a manner requested by BPA, are hampering timely adjudication of pension claims.

BACKGROUND

This issue arose in 6 October 2006 due to a complaint by a CF member who was apparently having difficulty obtaining supporting evidence from CF medical staff of their initial pension application with Veterans Affairs Canada (VAC).

In essence, what Bureau of Pension Advocates (BPA) would like is for the DND/CF physicians to provide a medical assessment including attribution or causality for injuries or conditions being considered for pension. The DND/CF physicians have been directed to provide the necessary assessment, treatment and prognosis for the condition in consideration, but determining causal linkage between the condition and military service is not the mandate of CFHS. This is the fundamental disagreement between the BPA and CFHS.  

DISCUSSION

The CF carries out most types of third party examinations as part of the CF Spectrum of Care, such as adoption medicals, diving and aviation medicals, commercial driver’s license, life insurance, etc. In every case, we provide the known factual condition of the patient, diagnosis and prognosis where appropriate. This would be no different for VAC cases. What the BPA demands, however, is not so much a diagnosis, but rather attribution or causality. Clearly, the CFHS cannot do this for ethical and conflict of interest reasons, not to mention the undermining of patient-doctor trust.

When a serving member seeks VAC medical pension, any and all relevant medical document are forwarded to VAC. In those cases where there is a clear injury and causality noted in the medical files and or CF98, the case should be relatively simple to adjudicate. The problem arises when a members states a disability, but the documentation is either lacking or it is unclear whether this is due to military service. It is in these cases that BPA wishes that CF physicians provide not only a diagnosis, but also a causality. From BPA perspective, this makes good sense as it simplifies their work.

From doctor-patient perspective, this situation places significant ethical dilemma on DND/CF physician. In many of these cases, the serving members do not with their “disability” to be known to the CF as it may have career related implications. For VAC application, however, it is more beneficial to maximize the disability. How then does a physician reconcile the two discordant findings? If the MO states that, based on the files, there is nothing to substantiate a disability, the patient/member will feel let down by their physician as the physician has not “advocated” on their behalf. But if the MO accepts the member’s position and provides a positive report, then they are legally and ethically obligated to change the members’ medical fitness status to reflect the new disability claim. Since this can be detrimental to the members’ military career, great pressure will be exerted to keep this out of the file. In either case, the physician is placed in an untenable position that will be detrimental to maintaining a trusting relationship. For retired members who have their forms completed by a civilian doctor, the civilian doctor has no obligation, whatsoever, to an employer to notify them of any occupational restriction arising out of the claim process. They are simply the patient’s advocate and are accountable only to the patient and not the employer. This is often the reason why virtually all insurance firms demand a third party independent medical examination and assessment to provide an objective evaluation, not tainted by the physicians’ obligation or loyalty to the patient. Therefore, comparing the role of CF physicians and their responsibility to the CF and the member of that of civilian MD and their retired CF members demonstrates lack of knowledge and full understanding. Further, any competent physician who has occupational medicine experience should be able to determine whether a condition is linked to military service as improbable, possible, probable and so one based on the work record and the facts of the medical condition presented. 

The important of physician-patient trust cannot be underestimated as this was the prime reason why the CoC access to members’ medical information was severely restricted to enhance and reinforce the member/patient’s trust in the medical system. If the CFHS is forced to determine causality, which is fundamentally the responsibility of BPA/VAC to carry out in the first place, there will be a major degradation of trust and it will severely challenge the integrity of physicians in the DND/CF. 

When it comes to providing medical legal and insurance claim reports, it is true that physicians are obligated to respond in a reasonable timeframe; but what is not required is to arrive at conclusions that may be debatable. Regulatory colleges and the CMPA regularly reinforce this distinction. These conclusions are left to “experts” who are routinely utilized by the court system; rather, the treating physician is required to states the facts. As an example, after a work related injury, the treating physician is often requested to fill out Worker’s Compensation Form. Nowhere does it ask the treating physician to make a determination of fault or causality. It is the medical staff at WCB or their designates who determines the likely causality and award benefits. The treating physician is not involved, aside from providing the facts of the case, and they are removed from potential conflict of interest, thereby safe guarding the doctor-patient trust.

In cases where causality is uncertain, as there were pre-existing conditions, insurance companies, including WCBs utilize third party independent medical examiners (IME) to provide an objective report. The IME are engaged at arm’s length and have no loyalty or obligation to the patient or the employer. For these IMEs, as there is no conflict of interest, either with the employer or with the patient, there are no ethical or integrity issues at play.

CONCLUSION

CF members needing independent assessment could be provided with this service by BPA using contracted third party independent medical examiners. This can even be done at a CF facility thus not denying this service to serving members, while safeguarding CF physician-patient relationship. While it is true that physician resources are limited across Canada, such IME can

be found if the effort and funds are directed appropriately as is being done for retired members.

The IME industry is of such magnitude that there is even a specialty in IME is the US http://www.abime.org/.

 

Prepared by : D Surgeon General 
Legal Advisor : CFLA
Approved by : Comd / Surgeon General / DGHS
Date Prepared : 27 July 2017

Enclosure 5

BRIEFING NOTE FOR THE COMMANDER MILITATY PERSONNEL COMMAND

DETERMINATION OF ATTRIBUTABILITY TO SERVICE

ISSUE

  1. Canadian Armed Forces (CAF) and Veterans Affairs Canada (VAC) Ombudsmen’s Joint Systemic Review of the Transition Process have suggested that CAF should be making the determination of attributability to service for CAF members who have developed an illness or sustained an injury during their military career in order to prevent delays in medically releasing members receiving VAC benefits. The intent of this briefing note is to propose a more feasible approach to achieve a similar end.

BACKGROUND

  1. Several Transition Related Reviews have highlighted the delays Veterans are experiencing in having decisions made with regard to disability awards, and other VAC benefits. Some of these delays can be explained by a late application by still-serving members for benefits, while others may be related to the delay for VAC to obtain the medical file from CAF or a delay in VAC making the decision.
  2. Over the last year, significant progress has been made in early engagement with members transitioning for medical reasons through the Enhanced Transition Services initiative. The result of this project is an increased awareness of CAF Case Managers about the importance of applying early before release for VAC benefits and for VAC Case Managers to engage earlier with releasing members.
  3. The addition of personnel to the CAF Record Disclosure Team has also eliminated the back log in service health records being transferred to VAC and reduced the turnaround time to less than three weeks.
  4. We have been made aware that VAC is working on simplifying the adjudication process and the criteria used in order to reduce their delays in making disability award decisions.

DISCUSSIONS/CONSIDERATIONS

  1. The only circumstances where the CAF is required to determine causality between military service and an illness or an injury is for Reserve Force members. This determination is essential for decision about entitlement to CAF health care and for purpose of Reserve Force Compensation. The CAF sometimes investigates an illness or an injury depending on the seriousness and may conduct Summary Investigations or Boards of Inquiry in some circumstances.
  2. With the exception of the circumstance above, the CAF has no extant statutory or policy mandate to systematically determine if an illness developed or an injury sustained during a member’s career is related to their military service. Further, the Canadian Forces Health Services Group (CF H Svcs Gp) has neither the human resources required, nor the training and experience to make such determinations based on VAC criteria. The decision regarding attributability to service is not a medical function; it is an administrative function that needs to take into account not just medical information, but the information from investigations and career information such as deployment and posting timelines that are managed by others outside of the CF H Svcs Gp.
  3. VAC has the mandate, personnel and experience to carry out the adjudication process. They will continue to be required to maintain this capability in order to process applications from Veterans that present with medical issues after release. Creating a system within the CAF would be inefficient in that it would create a duplication of the VAC capability and potentially create a problem with respect to the consistency of decisions between the two organizations.
  4. Measures can be taken to reduce delays in relation to the provision of VAC benefits. First, increasing awareness of members about the importance of applying early for VAC benefits is important, it can be achieved fairly easily and we in fact are already seeing this as a result of the Enhanced Transition Services initiative. Second, as they did for the Critical Injury Benefit, VAC could seek an amendment to their legislation that would allow for waiver of the requirement for an application by a member or veteran prior to a request by VAC for information from DND in furtherance of their mandate. This would in turn allow for earlier transfer of information and earlier processing of files. The third option would be to provide VAC adjudicators direct access to the CAF members’ medical file. This would, however, require amendments to the Privacy Act and Veterans legislation, and therefore parliamentary support.

RECOMMENDATION

  1. Considering the legislative and policy barriers discussed above and in order to prevent inefficiencies through duplication of capabilities and maintain consistency of attributability decision, it is recommended that the CAF not made determination of member’s attrubutability of illness or injury to military service, that this remain with VAC in accordance with their mandate. The Enhanced Transition Services initiative will continue to deliver the desired outcome to reduce delays and there is the potential to further enhance this through the Privacy Act and VAC legislative changes suggested above.

CONCLUSION  

  1. Despite CAF and VAC Ombudsmen’s recent recommendation, it is not recommended that DND/CAF make the determination of attributability to service for CAF members who have developed an illness or sustained an injury during their military career. To do so would create duplication of efforts and the potential for inconsistency of decision making, it would require increased resourcing to CAF and other forms of legislative and policy change. The desired outcome can be achieved through the transition improvements already underway.  

 

Prepared by : D Med Pol, CF H Svcs Gp
Reviewed by : D Surgeon General, CF H Svcs Gp
Responsible Group Principal : BGen, Surgeon General, CF H Svcs
Date Prepared : 21 June 2016

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