Mrs. Ruth Cooperrider
Des Moines, Iowa, 50325
June 13, 2007
The Honorable Michael H. Michaud
Chairman, Subcommittee on Health
US House of Representatives
Committee on Veterans’ Affairs
335 Cannon House Office Building
Washington, DC 20515
Dear Representative Michaud:
On behalf of the United States Ombudsman Association (USOA), thank you for your invitation to comment on H.R. 2192, proposed legislation to establish an ombudsman within the Department of Veterans’ Affairs.
I have served as President of the USOA for two years and am the Deputy Ombudsman in the State of Iowa – Office of Citizens’ Aide/Ombudsman. My short curriculum vitae is appended.
The USOA, a non-profit association, does not receive any federal funds and does not participate in any federal contract or grant, nor has it done so for the previous two fiscal years.
Founded in 1977, the USOA is our Nation’s oldest and largest organization of ombudsmen working in government to address citizen complaints. The membership of the USOA includes practicing ombudsmen at all levels of government, some of whom have general jurisdiction over multiple agencies and subject matters, and others who have jurisdiction over a specified subject matter or agency. (Detailed information regarding the USOA can be found at the Association’s website: https://www.usombudsman.org/.)
As a matter of good public policy, the USOA supports the establishment of independent ombudsman offices for the investigation and resolution of complaints involving administrative agencies in government at all levels. An ombudsman can serve as an independent office not only to address individual concerns, but also to identify systemic problems and recommend improvements in policies, practices, and procedures. An ombudsman can also help in the important effort to provide public and, indeed, legislative oversight of administrative agencies in government.
From this perspective we have reviewed the proposed legislation and offer these comments.
Key to the ability of an ombudsman to function effectively is independence. An ombudsman whose position, budget, staff, and investigations can be controlled or supervised by persons who (or whose actions or decisions) may be the subject of an investigation is not independent and will not be perceived as being independent. To the extent possible, an ombudsman should be structurally separated from the entities that are subject to the ombudsman’s review or investigations. An ombudsman should be free to hire and fire staff, within the larger employment structure, manage the budget, select and prioritize the issues to be investigated and determine how they should be investigated. This independence allows the ombudsman to act and to be viewed by the public as acting as an impartial official who reports findings and recommendations based on objective review of the facts and the applicable law.
H.R. 2192 establishes the ombudsman within the Department of Veterans’ Affairs. The USOA believes that the best way to make an ombudsman independent is by situating the ombudsman’s office in the legislative branch of government. If that arrangement is not feasible, then we believe that everything reasonably possible should be done to maximize an ombudsman’s independence within the branch of government or agency where the office is situated.
Appointment, Supervision, Term, and Removal
H.R. 2192 provides for the Secretary of the Department to designate the ombudsman. It does not specifically state to whom the Ombudsman reports for supervision or direction on job duties. Assuming that the ombudsman reports to the Secretary, the USOA believes that can compromise the independence of the ombudsman because the Secretary sets policies and makes decision relevant to the Department’s programs and is the person ultimately accountable for decisions made by departmental staff. The ombudsman needs to be able to function without fear or concern that shat he/she says in regards to supervisory officials might affect his/her job.
For this reason, the USOA believes it would be best for the ombudsman to be appointed by Congressional action. If that is not feasible, an alternative is for the ombudsman to be appointed by the President, with the advice and consent of the Senate (like an Inspector General) or a Congressional committee.
Furthermore, the term of the office should be set in such a manner that it does not coincide with administrative terms of office. In addition, removal or dismissal from office within the term should be limited to “just cause,” with relevant definitions specified in the legislation.
We urge inclusion of these provisions under subsection (a) to reinforce the independence of the ombudsman.
Based on the experience of USOA members, we recommend a provision for the ombudsman to appoint at least a deputy or assistant ombudsman, to maintain consistent functioning of the office, in the event the ombudsman is absent or the position is vacant.
Authority to Investigate
Subsection (b), pertaining to duties of the office, states only that the ombudsman “shall act as a liaison for veterans and their family members.” One of the hallmarks of an ombudsman function is the authority to investigate the agency which it oversees. The proposed legislation is silent in this regard. The USOA recommends that specific language be included in the legislation granting the ombudsman the authority to investigate complaints related to the health care program and benefits administered by the Department.
Authority to Access Information
H.R. 2192 is also silent regarding the ombudsman’s ability to gather relevant information, including information which may be confidential by law. The duty to investigate ought to include the authority to have access to information and to issue subpoenas when necessary. While usually an ombudsman will be able to obtain information from an agency on an informal basis, there may be instances when the agency may resist or deny information. Therefore, we recommend adding such a provision regarding this authority. In addition, the provision may require the ombudsman to keep confidential any information which is confidential by law.
Authority to Issue Public Reports
Another important function that is also missing from H.R. 2192 is the authority to report the investigative findings and recommendations for improvements. Since ombudsmen do not have enforcement authority they rely on the ability to persuade an agency to take corrective action. The option to publicly criticize an agency enhances that ability. In addition, public reports can educate and inform those interested in or affected by the issues involved. An ombudsman cannot be effective without the duty to investigate and report. In addition, the ombudsman should submit an annual report to Congressional members and other officials with policy and operational oversight over the Department of Veterans’ Affairs.
We recommend adding these duties to subsection (b) of the proposed legislation.
Confidentiality and Immunity
Subsection (d) provides for information provided to the ombudsman by veterans or their family members to be disclosed only as necessary to carry out the duties of the office. We recommend expanding this provision to grant the ombudsman immunity from being compelled to testify or produce complaint and investigative records in any legal proceedings, except as necessary to enforce or defend the authority of the office.
Thank you for allowing the USOA this opportunity to comment on the proposed legislation. We applaud your consideration of creating the ombudsman function, in the interest of improving the delivery of necessary services to our veterans and their families.
United States Ombudsman Association, and
State of Iowa – Office of Citizens’ Aide/Ombudsman