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UPDATE: A LOOK AT THE NEW "ATTORNEYS FOR VETERANS"

LEGISLATION -- Comparing the old U.S. Code with the

changes just voted in by Congress.

 

 

The Veterans' Choice of Representation Act has passed Congress.

But, there have been some changes from the original legislation.

Originally, the legislation would have allowed veterans to hire veterans at any stage of the VA claims process.  That would have included the initial filing of a claim.

However, that got changed.  And, the legislation states:  by striking ``the Board of Veterans' Appeals first makes a final decision in'' and inserting ``a notice of disagreement is filed with respect to''

This means that veterans will be able to hire an attorney after the initial claim is denied by the VA.  An attorney can then be hired to file a notice of disagreement and take the claim to the Board of Veterans' Appeals.

(NOTE:  A story in the Military Times newspapers had inaccurately stated, "...allowing attorneys to be hired to help veterans with all stages of filing disability claims."  This is not so.)

This is a small step forward for veterans, but not the complete package urged by many veterans' advocates.

The Disabled American Veterans (DAV) and the Veterans of Foreign Wars (VFW) had fought this legislation tooth-and-nail.

Insiders tell me it was lobbying by these two groups that got the legislation changed to prevent attorneys from filing the initial claim.  This means job security for the groups' Service Officers and keeps them on the front lines with veterans where organizational recruiting is a key element of their services.

Also, veterans are going to have to wait six months.  From the legislation:  The amendments made by subsections (c)(1) and (d) shall take effect on the date that is 180 days after the date of the enactment of this Act and shall apply with respect to services of agents and attorneys that are provided with respect to cases in which notices of disagreement are filed on or after that date.

And, the attorney contract can't be retroactive, as you read above. 

Below is the legislation as passed.

After that will be the law prior to these changes.

S. 3421 as passed in the House and given to the Senate here...
 http://thomas.loc.gov/cgi-bin/query/F?r109:3:./temp/~r109flYtqL:e0:

"Attorney" section of legislation below:

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Mr. BUYER. Mr. Speaker, I move to suspend the rules and pass the Senate bill (S. 3421) to authorize major medical facility projects and major medical facility leases for the Department of Veterans Affairs for fiscal years 2006 and 2007, and for other purposes, as amended.

The Clerk read as follows
S. 3421

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Veterans Benefits, Health Care, and Information Technology Act of 2006''.

(b) Table of Contents.--The table of contents for this Act is as follows:

Sec..1..Short title; table of contents.

Sec..2..References to title 38, United States Code.

TITLE I--ATTORNEY REPRESENTATION MATTERS

Sec..101..Agent or attorney representation in veterans benefits cases before the Department of Veterans Affairs.

 

(break)

 

SEC. 2. REFERENCES TO TITLE 38, UNITED STATES CODE.

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of title 38, United States Code.


TITLE I--ATTORNEY REPRESENTATION MATTERS

SEC. 101. AGENT OR ATTORNEY REPRESENTATION IN VETERANS BENEFITS CASES BEFORE THE DEPARTMENT OF VETERANS AFFAIRS.

(a) Qualifications and Standards of Conduct for Individuals Recognized as Agents or Attorneys.--

(1) ADDITIONAL QUALIFICATIONS AND STANDARDS FOR AGENTS AND ATTORNEYS GENERALLY.--Subsection (a) of section 5904 is amended--

(A) by inserting ``Recognition.--(1)'' after ``(a)'';

(B) by striking ``The Secretary may recognize'' and inserting ``Except as provided in paragraph (4), the Secretary may recognize'';

(C) by striking the second sentence; and

(D) by adding at the end the following new paragraphs:

``(2) The Secretary shall prescribe in regulations (consistent with the Model Rules of Professional Conduct of the American Bar Association) qualifications and standards of conduct for individuals recognized under this section, including a requirement that, as a condition of being so recognized, an individual must--

``(A) show that such individual is of good moral character and in good repute, is qualified to render claimants valuable service, and is otherwise competent to assist claimants in presenting claims;

``(B) have such level of experience or specialized training as the Secretary shall specify; and

``(C) certify to the Secretary that the individual has satisfied any qualifications and standards prescribed by the Secretary under this section.

``(3) The Secretary shall prescribe in regulations requirements that each agent or attorney recognized under this section provide annually to the Secretary information about any court, bar, or Federal or State agency to which such agent or attorney is admitted to practice or otherwise authorized to appear, any relevant identification number or numbers, and a certification by such agent or attorney that such agent or attorney is in good standing in every jurisdiction where the agent or attorney is admitted to practice or otherwise authorized to appear.

``(4) The Secretary may not recognize an individual as an agent or attorney under paragraph (1) if such individual has been suspended or disbarred by any court, bar, or Federal or State agency to which the individual was previously admitted to practice and has not been subsequently reinstated.

``(5) The Secretary may prescribe in regulations reasonable restrictions on the amount of fees that an agent or attorney may charge a claimant for services rendered in the preparation, presentation, and prosecution of a claim before the Department. A fee that does not exceed 20 percent of the past due amount of benefits awarded on a claim shall be presumed to be reasonable.

``(6)(A) The Secretary may charge and collect an assessment from an individual recognized as an agent or attorney under this section in any case in which the Secretary pays to the agent or attorney, from past-due benefits owed to a claimant represented by the agent or attorney, an amount as a fee in accordance with a fee arrangement between the claimant and the agent or attorney.

``(B) The amount of an assessment under subparagraph (A) shall be equal to five percent of the amount of the fee required to be paid to the agent or attorney, except that the amount of such an assessment may not exceed $100.

``(C) The Secretary may collect an assessment under subparagraph (A) by offsetting the amount of the fee otherwise required to be paid to the agent or attorney from the past-due benefits owed to the claimant represented by the agent or attorney.

``(D) An agent or attorney who is charged an assessment under subparagraph (A) may not, directly or indirectly, request, receive, or obtain reimbursement for such assessment from the claimant represented by the agent or attorney.

``(E) Amounts collected under this paragraph shall be deposited in the account available for administrative expenses for veterans' benefits programs. Amounts so deposited shall be merged with amounts in such account and shall be available for the same purpose, and subject to the same conditions and limitations, as amounts otherwise in such account.''.

(2) SUSPENSION OF RECOGNIZED REPRESENTATIVES OF VETERANS SERVICE ORGANIZATIONS.--Section 5902(b) is amended--

(A) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively;

(B) by inserting ``(1)'' after ``(b)''; and

(C) by adding at the end the following new paragraph:

``(2) An individual recognized under this section shall be subject to the provisions of section 5904(b) of this title on the same basis as an individual recognized under section 5904(a) of this title.''.

(3) SUSPENSION OF INDIVIDUALS RECOGNIZED FOR PARTICULAR CLAIMS.--Section 5903 is amended--

(A) by inserting ``(a) In General.--'' before ``The Secretary''; and

(B) by adding at the end the following new subsection:

``(b) Suspension.--An individual recognized under this section shall be subject to the provisions of section 5904(b) of this title on the same basis as an individual recognized under section 5904(a) of this title.''.

(b) Additional Bases for Suspension of Individuals.--Subsection (b) of section 5904 is amended--

(1) by inserting ``Suspension of Agents and Attorneys.--'' after ``(b)'';

(2) in paragraph (4), by striking ``or'' at the end;

(3) in paragraph (5), by striking the period and inserting a semicolon; and

(4) by adding at the end the following new paragraphs:

``(6) has presented to the Secretary a frivolous claim, issue, or argument, involving conduct inconsistent with ethical standards for the practice of law;

``(7) has been suspended or disbarred by any court or bar to which such agent or attorney was previously admitted to practice, or has been disqualified from participating in or appearing before any Federal agency, and has not been subsequently reinstated;

``(8) has charged excessive or unreasonable fees, as determined by the Secretary in accordance with subsection (c)(3)(A); or

[Page: H8997] GPO's PDF

``(9) has failed to comply with any other condition specified in regulations prescribed by the Secretary for purposes of this subsection.''.

(c) Modification of Date for Commencement of Services Subject to Fees.--

(1) MODIFICATION.--Effective as provided in subsection (h), paragraph (1) of subsection (c) of such section is amended--

(A) by striking ``the Board of Veterans' Appeals first makes a final decision in'' and inserting ``a notice of disagreement is filed with respect to'';

(B) by striking the second sentence; and

(C) in the third sentence, by inserting ``fees charged, allowed, or paid for'' before ``services provided''.

(2) REPORT.--Not later than 42 months after the date of the enactment of this Act, the Secretary of Veterans Affairs shall submit to Congress a report that sets forth an assessment of the effects of allowing agents and attorneys recognized under section 5904 of title 38, United States Code, to charge a fee to a claimant for services rendered in the preparation, presentation, and prosecution of a claim before the Department of Veterans Affairs after a notice of disagreement has been filed. Such report shall include the recommendations of the Secretary with respect to agent and attorney representation.

(d) Modification of Requirements To File Attorney Fee Agreements.--Effective as provided in subsection (h), paragraph (2) of subsection (c) of such section is amended--

(1) by striking ``after the Board first makes a final decision in the case'' and inserting ``after a notice of disagreement is filed with respect to the case'';

(2) by striking ``with the Board at such time as may be specified by the Board'' and inserting ``with the Secretary pursuant to regulations prescribed by the Secretary''; and

(3) by striking the second and third sentences.

(e) Attorney Fees.--Subsection (c) of such section is further amended--

(1) in paragraph (1), by striking ``paragraph (3)'' and inserting ``paragraph (4)''; and

(2) by redesignating paragraph (3) as paragraph (4);

(3) by inserting after paragraph (2) the following new paragraph (3):

``(3)(A) The Secretary may, upon the Secretary's own motion or at the request of the claimant, review a fee agreement filed pursuant to paragraph (2) and may order a reduction in the fee called for in the agreement if the Secretary finds that the fee is excessive or unreasonable.

``(B) A finding or order of the Secretary under subparagraph (A) may be reviewed by the Board of Veterans' Appeals under section 7104 of this title.

``(C) If the Secretary under subsection (b) suspends or excludes from further practice before the Department any agent or attorney who collects or receives a fee in excess of the amount authorized under this section, the suspension shall continue until the agent or attorney makes full restitution to each claimant from whom the agent or attorney collected or received an excessive fee. If the agent or attorney makes such restitution, the Secretary may reinstate such agent or attorney under such rules as the Secretary may prescribe.''.

(f) Technical and Conforming Amendments.--Subsection (d) of such section is amended--

(1) by inserting ``Payment of Fees Out of Past-Due Benefits.--'' after ``(d)'';

(2) by inserting ``agent or'' before ``attorney'' each place it appears;

(3) in paragraph (1), by striking ``of this subsection'' after ``paragraph (2)'';

(4) in paragraph (2)(B), by striking ``of this paragraph'' after ``subparagraph (A)''; and

(5) in paragraph (3)--

(A) by striking ``attorneys' fee'' and inserting ``fee to an agent or attorney''; and

(B) by striking ``of this subsection'' after ``paragraph (1)''.

(g) Repeal of Penalty for Certain Acts.--Section 5905 is amended by striking ``(1)'' and all that follows through ``(2)''.

(h) Effective Date.--The amendments made by subsections (c)(1) and (d) shall take effect on the date that is 180 days after the date of the enactment of this Act and shall apply with respect to services of agents and attorneys that are provided with respect to cases in which notices of disagreement are filed on or after that date.

(i) Limitation on Collection of Fee Assessment.--No assessments on fees may be collected under paragraph (6) of section 5904(a) of title 38, United States Code (as added by subsection (a)(1)(D) of this section), until the date on which the Secretary of Veterans Affairs prescribes the regulations required by the amendments made by this section.

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Law prior to changes here...
 http://www.washingtonwatchdog.org/documents/usc/ttl38/ptIV/ch59/sec5904.html

Old law below:

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United State Code
TITLE 38 - VETERANS' BENEFITS
PART IV - GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 59 - AGENTS AND ATTORNEYS
U.S. Code as of: 01/26/1998
Sec. 5904. Recognition of agents and attorneys generally

(a) The Secretary may recognize any individual as an agent or
attorney for the preparation, presentation, and prosecution of
claims under laws administered by the Secretary. The Secretary may
require that individuals, before being recognized under this
section, show that they are of good moral character and in good
repute, are qualified to render claimants valuable service, and
otherwise are competent to assist claimants in presenting claims.
(b) The Secretary, after notice and opportunity for a hearing,
may suspend or exclude from further practice before the Department
any agent or attorney recognized under this section if the
Secretary finds that such agent or attorney -
(1) has engaged in any unlawful, unprofessional, or dishonest
practice;
(2) has been guilty of disreputable conduct;
(3) is incompetent;
(4) has violated or refused to comply with any of the laws
administered by the Secretary, or with any of the regulations or
instructions governing practice before the Department; or
(5) has in any manner deceived, misled, or threatened any
actual or prospective claimant.
(c)(1) Except as provided in paragraph (3), in connection with a
proceeding before the Department with respect to benefits under
laws administered by the Secretary, a fee may not be charged,
allowed, or paid for services of agents and attorneys with respect
to services provided before the date on which the Board of
Veterans' Appeals first makes a final decision in the case. Such a
fee may be charged, allowed, or paid in the case of services
provided after such date only if an agent or attorney is retained
with respect to such case before the end of the one-year period
beginning on that date. The limitation in the preceding sentence
does not apply to services provided with respect to proceedings
before a court.
(2) A person who, acting as agent or attorney in a case referred
to in paragraph (1) of this subsection, represents a person before
the Department or the Board of Veterans' Appeals after the Board
first makes a final decision in the case shall file a copy of any
fee agreement between them with the Board at such time as may be
specified by the Board. The Board, upon its own motion or the
request of either party, may review such a fee agreement and may
order a reduction in the fee called for in the agreement if the
Board finds that the fee is excessive or unreasonable. A finding
or order of the Board under the preceding sentence may be reviewed
by the United States Court of Veterans Appeals under section
7263(d) of this title.
(3) A reasonable fee may be charged or paid in connection with
any proceeding before the Department in a case arising out of a
loan made, guaranteed, or insured under chapter 37 of this title.
A person who charges a fee under this paragraph shall enter into a
written agreement with the person represented and shall file a copy
of the fee agreement with the Secretary at such time, and in such
manner, as may be specified by the Secretary.
(d)(1) When a claimant and an attorney have entered into a fee
agreement described in paragraph (2) of this subsection, the total
fee payable to the attorney may not exceed 20 percent of the total
amount of any past-due benefits awarded on the basis of the claim.
(2)(A) A fee agreement referred to in paragraph (1) is one under
which the total amount of the fee payable to the attorney -
(i) is to be paid to the attorney by the Secretary directly
from any past-due benefits awarded on the basis of the claim; and
(ii) is contingent on whether or not the matter is resolved in
a manner favorable to the claimant.
(B) For purposes of subparagraph (A) of this paragraph, a claim
shall be considered to have been resolved in a manner favorable to
the claimant if all or any part of the relief sought is granted.
(3) To the extent that past-due benefits are awarded in any
proceeding before the Secretary, the Board of Veterans' Appeals, or
the United States Court of Veterans Appeals, the Secretary may
direct that payment of any attorneys' fee under a fee arrangement
described in paragraph (1) of this subsection be made out of such
past-due benefits. In no event may the Secretary withhold for the
purpose of such payment any portion of benefits payable for a
period after the date of the final decision of the Secretary, the
Board of Veterans' Appeals, or Court of Veterans Appeals making (or
ordering the making of) the award.

Source
(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1238, Sec. 3404; Pub. L.
99-576, title VII, Sec. 701(80), Oct. 28, 1986, 100 Stat. 3298;
Pub. L. 100-687, div. A, title I, Sec. 104(a), Nov. 18, 1988, 102
Stat. 4108; renumbered Sec. 5904 and amended Pub. L. 102-40, title
IV, Sec. 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub.
L. 102-83, Sec. 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991,
105 Stat. 403-405; Pub. L. 102-405, title III, Sec. 303(a), Oct. 9,
1992, 106 Stat. 1985; Pub. L. 103-446, title V, Sec. 504(a), Nov.
2, 1994, 108 Stat. 4663.)


AMENDMENTS
1994 - Subsec. (d)(2)(A). Pub. L. 103-446 amended subpar. (A)
generally. Prior to amendment, subpar. (A) read as follows: ''A
fee agreement referred to in paragraph (1) of this subsection is
one under which (i) the amount of the fee payable to the attorney
is to be paid to the attorney by the Secretary directly from any
past-due benefits awarded on the basis of the claim, and (ii) the
amount of the fee is contingent on whether or not the matter is
resolved in a manner favorable to the claimant.''
1992 - Subsec. (c)(1). Pub. L. 102-405, Sec. 303(a)(1),
substituted ''Except as provided in paragraph (3), in'' for ''In''.
Subsec. (c)(3). Pub. L. 102-405, Sec. 303(a)(2), added par. (3).
1991 - Pub. L. 102-40, Sec. 402(b)(1), renumbered section 3404 of
this title as this section.
Subsec. (a). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
''Secretary'' for ''Administrator'' in two places.
Pub. L. 102-83, Sec. 4(a)(1), substituted ''administered by the
Secretary'' for ''administered by the Veterans' Administration''.
Subsec. (b). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
''Secretary'' for ''Administrator'' in two places in introductory
provisions.
Pub. L. 102-83, Sec. 4(a)(3), (4), substituted ''Department'' for
''Veterans' Administration'' in introductory provisions and in par.
(4).
Pub. L. 102-83, Sec. 4(a)(1), substituted ''administered by the
Secretary'' for ''administered by the Veterans' Administration'' in
par. (4).
Subsec. (c)(1). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted
''Department'' for ''Veterans' Administration''.
Pub. L. 102-83, Sec. 4(a)(1), substituted ''administered by the
Secretary'' for ''administered by the Veterans' Administration''.
Subsec. (c)(2). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted
''Department'' for ''Veterans' Administration''.
Pub. L. 102-40, Sec. 402(d)(1), substituted ''7263(d)'' for
''4063(d)''.
Subsec. (d)(2)(A), (3). Pub. L. 102-83, Sec. 4(b)(1), (2)(E),
substituted ''Secretary'' for ''Administrator'' wherever appearing.
1988 - Subsecs. (c), (d). Pub. L. 100-687 added subsecs. (c) and
(d) and struck out former subsec. (c) which read as follows: ''The
Administrator shall determine and pay fees to agents or attorneys
recognized under this section in allowed claims for monetary
benefits under laws administered by the Veterans' Administration.
Such fees -
''(1) shall be determined and paid as prescribed by the
Administrator;
''(2) shall not exceed $10 with respect to any one claim; and
''(3) shall be deducted from monetary benefits claimed and
allowed.''
1986 - Subsec. (b). Pub. L. 99-576 substituted ''the
Administrator'' for ''he'' in introductory text.
EFFECTIVE DATE OF 1994 AMENDMENT
Section 504(b) of Pub. L. 103-446 provided that: ''The amendment
made by subsection (a) (amending this section) shall apply with
respect to fee agreements entered into on or after the date of the
enactment of this Act (Nov. 2, 1994).''
EFFECTIVE DATE OF 1992 AMENDMENT
Section 303(b) of Pub. L. 102-405 provided that: ''Paragraph (3)
of section 5904(c) of title 38, United States Code, as added by
subsection (a), shall apply with respect to services of agents and
attorneys provided after the date of the enactment of this Act
(Oct. 9, 1992).''
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-687 effective Sept. 1, 1989, see section
401(a) of Pub. L. 100-687, set out as an Effective Date note under
section 7251 of this title.
FEE AGREEMENTS
Subsec. (d) of this section not to prevent award of fees and
expenses under section 2412(d) of Title 28, Judiciary and Judicial
Procedure, but subsec. (d) of this section inapplicable to such
award where fees for the same work are received under both sections
and claimant's attorney refunds to claimant amount of smaller fee,
see section 506(c) of Pub. L. 102-572, set out as a note under
section 2412 of Title 28.
APPLICABILITY TO ATTORNEYS FEES
Section 403 of Pub. L. 100-687 provided that: ''The amendment to
section 3404(c) (now 5904(c)) of title 38, United States Code, made
by section 104(a) shall apply only with respect to services of
agents and attorneys in cases in which a notice of disagreement is
filed with the Veterans' Administration (now Department of Veterans
Affairs) on or after the date of the enactment of this division
(Nov. 18, 1988).''

SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 5905, 7263 of this title.

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Larry Scott