B&G Logo

March 16, 2014

Veterans Courts Offer Alternative

Filed under: Uncategorized — Tom Hagen @ 9:01 pm

When I returned to private practice with Bradley & Guzzetta last fall I was asked to join the team of the 5th Judicial District Veterans Court located in Mankato, Minnesota.  This week I will attend three days of training in conjunction with the Minnesota judicial system’s Veterans’ Treatment Court Planning Initiative.  The 5th District has also selected me to attend Veteran Court Conference 2 in Los Angeles in May.  My service with the court is entirely voluntary, and I am pleased and excited to have this additional opportunity to serve America’s veterans.

So what is a Veterans Court?  These courts first began in 2008 and there are now 130 of them in 40 states.  Also known as veterans treatment courts, they are an alternative to the regular criminal justice system.  They’re meant to address the unique needs and circumstances of veterans while recognizing their service and have been very successful in the short time they have been in existence.  Veterans courts are considered “problem solving” courts and use a multi-disciplinary team of professionals to address the needs of the vets in the program while promoting sobriety and stability.  One in six Iraq and Afghanistan vets suffer from substance abuse and 81% of vets arrested have a substance abuse problem.  Since 2004, the number of vets treated for mental illness and substance abuse has increased 38%.  Simply warehousing these people as may have happened after past wars is not the answer and fails to recognize the unique circumstances of their service on our behalf.

The court is designed for U.S. military veterans charged with misdemeanor, gross misdemeanor or felony offenses who are often struggling with addiction, mental illness and/or co-occurring disorders. The goal is to promote sobriety, recovery and stability through a coordinated response that involves cooperation and collaboration with the traditional partners found in problem solving courts, with the addition of the U.S. Department of Veterans Affairs Health Care networks, the Veterans Benefits Administration, volunteer veteran mentors and veterans support organizations.  For example, the following are some of the members represented on the team:  the vet court presiding judge, probation officers, prosecutors, defense attorneys, county veterans service officers, the jail administrator, volunteer mentors, and drug and alcohol counselors.  One of the key participants is the VA justice outreach coordinator who can keep the group informed of the veteran-defendant’s upcoming VA medical appointments, etc.  Other things the court may address are health care, emergency financial assistance, chemical dependency and mental health counseling, employment and skills training assistance, temporary housing and other referral services.

So how does it work?  After a veteran is charged with a crime, either prior to or after a plea or finding of guilty, the veteran-defendant with the consent of the prosecuting attorney may be offered the option to voluntarily participate in the program.  Participation is always voluntary.  The veteran-defendant then attends veterans court on a regular basis, as often as twice a month, for the duration of their probation.  The team meets before the court session for progress updates on each veteran and addresses any current needs the veteran may have with respect to getting back on their feet.

Veterans courts appear to be working. 67% of vets in the program successfully complete their treatment and those that receive VA services experience an 88% reduction in arrests from the year before.  As VA Secretary Eric Shinseki told Veteran Conference 1 in December, “Instead of either jailing veterans who have been brought up on charges or releasing them back to the streets, you have underwritten treatment as a powerful option for dealing with those who have broken our laws.”

Tom Hagen is a 25-year member of the Minnesota National Guard where he serves as a judge advocate.  He deployed to Iraq twice with Minnesota’s 34th “Red Bull” Infantry Division.  Tom is a member of the National Organization of Veterans’ Advocates and has practiced law in Minnesota since 1997.  He concentrates on helping veterans and their family members receive the benefits they deserve.

November 5, 2013

Overview: The VA Claims Process

Filed under: Uncategorized — Tom Hagen @ 10:11 pm

“The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional as to how they perceive the Veterans of earlier wars were treated and appreciated by their country.” George Washington, 1789

“…let us…care for him who shall have borne the battle, and for his widow, and his orphan…” Abraham Lincoln, Second Inaugural Address, 1865

As demonstrated in these quotes, the mandate to care for those who have “borne the battle” has been ingrained in our National ethos since our earliest days.  I am so inspired to be contributing to this heritage by focusing a legal practice on my fellow veterans.  And I am grateful and humbled by the willingness of Bradley & Guzzetta to add this service to their practice.  In this column I’ll provide a brief summary of the VA disability claims process.  A future column will describe the lawyer’s role in this process and how, when and why to hire one.

The United States Department of Veterans Affairs (VA) administers a variety of benefits and services that provide financial and other forms of assistance to servicemembers, veterans, their dependents and survivors. One of the most common benefits is Disability Compensation (DC). Disability Compensation is a tax free monetary benefit paid to veterans with disabilities that are the result of a disease or injury incurred or aggravated during active military service (“service connected”). Compensation may also be paid for post-service disabilities that are considered related or secondary to disabilities incurred in service and for disabilities presumed to be related to circumstances of military service, even though they may arise after service. Generally, the degrees of disability specified are also designed to compensate for considerable loss of working time from exacerbations or illnesses. (See www.va.gov) The bottom line is that veterans who can prove an illness or injury connected to or aggravated by their service may be eligible for benefits. This summary is not meant to be a detailed guide as to how to apply, or all of the details that accompany each step, detailed instructions for which can be found several places online.

VA Disability Compensation is, of course, for veterans. What is a “veteran” is not always as obvious as it may seem and is the first step in determining eligibility for DC benefits. For purposes of qualifying for benefits, the VA identifies veterans as “those individuals who served in the active military, naval, or air service, and [were] discharged or released therefrom under conditions other than dishonorable.” Again, veteran status is not always clear under this definition, but that is a topic for another post.

As heard frequently in the media, the VA has a large backlog of claims and the process of applying for and receiving final determination may take several years. The steps to the claims process are as follows:

1. File a Claim. A claim can be filed at the local VA office or online. It is common for veterans to receive the assistance of their county veterans’ service office, or one of the service organizations (DAV, VFW, American Legion, etc.). A surviving dependent of a veteran may also file a claim for dependency and indemnity compensation, death pension, and accrued benefits.

2. Receive the decision.

3. If not satisfied with the decision, the applicant has one year from the date the decision is mailed to file a Notice of Disagreement (NOD). The NOD must be submitted in writing and express a desire that the matter be reviewed by the Board of Veterans Appeals (BVA). After sending a NOD, the veteran may request that an employee of the VA Regional Office, known as a Decision Review Officer (DRO), review the file. Once a NOD has been submitted, the veteran may hire an attorney to assist in the appeal.

4. After the NOD is reviewed, the VA will send the veteran a Statement of the Case (SOC), which will provide a detailed explanation of the laws, evidence, and regulations used in deciding the case. In addition, the veterans will receive a form for confirming that they still wish their appeal to go forward (VA Form 9).

5. Substantive Appeal. Using VA Form 9, the veteran provides specific reasons that he/she believes the VA decided the case incorrectly, within 60 days of the date the SOC was mailed or within one year of the date the VA mailed the original decision, whichever date is later.

6. Decision by the BVA. The BVA reviews cases in the order received. According to the National Organization of Veterans’ Advocates, as of 2011 it could take as long as 883 days for the BVA to review the appeal and make a decision. The BVA will grant the claim, deny the claim, or send it back for additional matters. The veteran’s options if the claim is denied are to try and reopen the claim at the Regional Office, ask the BVA to reconsider or review based on error, or appeal the decision to the U.S. Court of Appeals for Veterans Claims (CAVC).

7. Appeal to the CAVC. If the BVA denies a claim, an appeal can be filed with the CAVC, which has exclusive jurisdiction to review adverse decisions of the BVA. This special federal court of appeals reviews the record for error. It is not a trial court and there are no witnesses or new evidence allowed. At this point the VA is represented in the proceedings for the first time by government attorneys opposing the appeal.

Although this summary of the VA disability claim process was short, the issues can be legally complex. Questions of veterans status, connection of the veteran’s service to the injury or illness, and the disability rating derived therein represent just a few of the reasons a veteran should consider a trained advocate on their side. A future post will cover the role of an attorney in representing a veteran in the appeal process and provide a guide as to when and why to hire an attorney for the appeal.

Tom Hagen is a 24-year member of the Minnesota National Guard where he serves as a judge advocate.  He deployed to Iraq twice with Minnesota’s 34th “Red Bull” Infantry Division.  Tom is a member of the National Organization of Veterans’ Advocates and has practiced law in Minnesota since 1997.

October 25, 2013

Introduction — Tom Hagen

Filed under: Uncategorized — Tom Hagen @ 10:25 pm

I want to take my first opportunity to contribute to the Bradley & Guzzetta website to introduce myself and thank Mike Bradley and Steve Guzzetta for inviting me to join their firm. I have been practicing law in Minnesota since 1997. I am focusing my current efforts on assisting veterans after over 15 years as a general practitioner, military lawyer and government employee. I also have a strong interest in public service as I strongly believe it to be critical to the health and vitality of our American experiment in self-government. My nearly 25 years in the National Guard with three overseas deployments since 2003 have also given me a strong appreciation for and desire to serve my fellow veterans. It is for them that I have returned to the private practice of law. Although I am focusing on veterans, I bring a wealth of experience in law, government, public policy and military affairs to the firm and am available for a wide range of matters.

I’ve known Mike since we served together in the National Guard as judge advocates (military lawyers) in the late 1990s. I am a born and raised Minnesotan and my family has deep roots in Minnesota and the Upper Midwest. I was born at the old St. Mary’s Hospital (now University of Minnesota Riverside) and graduated from Chaska High School in 1986. While studying political science at the University of Minnesota-Duluth I developed my interest in government, politics and public policy. This led to my interning in then-U.S. Senator Dave Durenberger’s Washington, D.C. office and eventually a full-time gig on his staff after I graduated.

I returned to Minnesota to attend law school at William Mitchell at night while I worked for the State of Minnesota during the day. After graduating my wife and I decided that we wanted to start a family in a small town and I accepted my first attorney position with a small firm in Waseca, Minnesota. I commenced to start a family and a general practice focusing on family, criminal and municipal law. It was a great place to learn the ropes of the law. My interest in community service also led to my seeking public office and election as Mayor of Waseca in 2000.

In the post-9/11 era, my service with the Minnesota National Guard led to three overseas deployments starting in 2003. As a young captain and judge advocate with the 34th Infantry Division, we deployed to Bosnia-Herzogovina in support of the Dayton Peace Accords that ended the war following the break up of Yugoslavia. This was the largest deployment of the Minnesota National Guard and the first for the 34th Infantry Division headquarters since the end of World War II. Little did we know that this was just the first of many deployments for the Minnesota National Guard and its Red Bulls. I then served as the Brigade Judge Advocate (senior lawyer) for the 34th’s First Brigade Combat Team in southern Iraq in 2005-06. Caught in the 2007 surge, the First Brigade’s 22-month deployment turned out to be the longest for any U.S. Army unit in Operation Iraqi Freedom. I then deployed for my third time as the Deputy Staff Judge Advocate for the 34th Infantry Division headquarters as it deployed for the second time since World War II in 2009. The 34th provided command and control for 16,000 troops in the 9 provinces of southern Iraq. I currently hold the rank of Lieutenant Colonel. Between deployments I returned to state service as an Assistant to the Commissioner at the Minnesota Department of Commerce. I recently completed a three year set of active duty orders with the National Guard in a mission supporting civil authorities in domestic emergencies and natural disasters.

My wife and I continue to live in Waseca, Minnesota with our three children. I am a member of the American Legion and VFW and coach youth baseball. My wife has been a financial advisor with Edward Jones since 1999. Our two boys are involved in baseball and football and our special needs daughter brings much joy and challenge to our lives. We like hunting, fishing, boat and camping. I guess you could say we are natural Minnesotans. My full professional bio can be found on the firm website at http://bradleyguzzetta.com/TomHagenBio.html, and I can be reached at thagen@bradleyguzzetta.com.

Commercial Satellite Subscribers Beware!

Filed under: cable,legal,Michael R. Bradley,Mike Bradley,Satellite,telecommunications,video — Mike Bradley @ 11:54 am

Many businesses buy Satellite television service. When they buy it, they want it working and they want it cheap. Satellite operators are happy to oblige and sign ‘em up. They might get residential service or a form of commercial service. Who cares, it’s working right? Buyer beware!

It does matter. What many businesses don’t realize is that they need specific authorization to publicly show the programming. When the service is ordered and installed, this may not be made clear to the business. Without the right authorization, the business could unwittingly be violating federal law. And the law is punitive.

Eventually, satellite operators like DirecTV investigate their commercial subscribers. Here’s how they do it. The operator, through a law firm, sends a private investigator to the place of business. The PI takes video inside the establishment and may even ask the establishment to change the channels to see different programming. The video will show the number of patrons and the programming. The PI sends the video and pictures to the attorney.

Armed with this information, the operator’s attorney will send a demand letter to the business claiming the business violated federal law, 47 U.S.C. §605(e), for the unlawful public showing of satellite programming. The attorney will demand money. A lot of money. If the business doesn’t pay, the operator may sue and seek the following:

· Actual or Statutory damages which allows for a recovery between $1,000 and $10,000, in the courts discretion. See [§ 605(e)(3)(C)(i)(I)-(II)]; and
· Enhanced damages for a willful violation in an amount up to $100,000. See [§ 605(e)(3)(C)(ii)]; and
· Attorneys fees and costs. See [§ 605(e)(3)(B)(iii)].

The suit is usually brought in federal court, where the operator knows it will be more expensive to litigate. In 2012, the U.S. District in Wisconsin ruled against a bar/restaurant for showing a sporting event without authorization to 43 patrons. The court calculated statutory damages at $55 per patron, but added another $19,978 for enhanced damages and attorney’s fees and costs. An award of $24,000. For a small business that is a big hit. In that case bar/restaurant didn’t appear and that was held against them in terms of enhanced damages.

Add in attorney’s fees to defend the business, and it’s easy to see how significant the impact could be on a small business.

The lesson for business owners is to review the satellite service agreement. Now! Don’t wait for the demand letter to show up at your door.

October 18, 2013

Google Makes Example of Overland Park – Lesson for Cities

Earlier this week, Google told Overland Park, Kansas that its approval process took too long and they were moving on. Instead of continuing to seek approval from the City, Google sought an indefinite continuance. Leaving Overland Park without a new competitor.

The City and Google spent about nine months negotiating a deal. It was to be approved at a September Council meeting. But last second concerns raised by Council members caused the contract to be pushed out 30 days, as reported by the Kansas City Star. That apparently was the last straw. Google has now iced the project in Overland Park.

Was it wrong for the Council to raise concerns? Of course not. Council members should raise questions that concern and protect their City. This situation illustrates the importance of having the Council briefed and allowing their questions to be answered before the meeting approving the deal. In Overland Park, the last minute questions and continuation iced Google Fiber.

October 8, 2013

But I Didn’t Order That!

A Couple of years ago, Comcast told its subscribers that it was converting most of its channels from analog to digital. The transition, according to Comcast, would result in all sorts of great benefits to subscribers. But, there was a catch. You now had to have a converter box on all of your TVs.

No problem said Comcast, “we we will provide our residential customers at the Standard level of service and higher with one digital set-top converter and up to two digital adapters – all with remotes – at no change in the current monthly service cost.” All subscribers had to do was call and request the boxes. Subscribers did just that.

For about 2 years, everything went as promised. Then Comcast changed course. It started to charge subscribers $1.99 per subscriber per box for these converter boxes. Subscribers cried out, “wait a second, you said I wouldn’t be charged!” It was pointed out by some rate authorities that the $1.99 charge was $1.49 higher than the maximum permitted rate on Comcast’s Rate form.

Comcast changed course again, indicating that the $1.99 fee was a service fee rather than an equipment fee. Then Comcast said that of the $1.99 fee, $.50 was for equipment and $1.49 was for service. Not only were subscribers now being charged for equipment that they were previously told would be provided at no cost due to Comcast’s decision to convert its cable signals, but they were now being charged for a service that they never ordered at all. When subscribers realize they are now being charged for this new never-been-described service, the collective subscriber response has been, “but I didn’t order that!”

Years ago, Congress passed a law that was designed to protect cable subscribers from being duped into buying new equipment and services without actually asking for it. A practice called negative option billing. The FCC has a similar rule.

Were subscribers duped by Comcast? We think so. This story from King 5 News in Seattle shows that subscribers think so too.

Older Posts »