69-010

2d Session

110-473

--VETERANS' HEALTH CARE AUTHORIZATION ACT OF 2008

[To accompany S. 2969]

The Committee on Veterans' Affairs (hereinafter, `the Committee'), to which was referred the bill (S. 2969), to enhance the capacity of the Department of Veterans Affairs to recruit and retain nurses and other critical health care professionals, and for other purposes, having considered an amendment to the bill in the nature of a substitute, unanimously reports favorably thereon with an amendment, and an amendment to the title, and recommends that the bill, as amended, do pass.

INTRODUCTION

On May 1, 2008, Chairman Akaka introduced S. 2969, the proposed `Veterans' Health Care Authorization Act of 2008.' S. 2969, as introduced, would enhance the capacity of the Department of Veterans Affairs (hereinafter, `VA') to recruit and retain nurses and other critical health care professionals.

Earlier, on October 31, 2007, Chairman Akaka introduced, by request, S. 2273, the proposed `Enhanced Opportunities for Formerly Homeless Veterans Residing in Permanent Housing Act of 2007.' S. 2273 would enhance services for previously homeless veterans and for veterans at risk of becoming homeless.

On November 16, 2007, Senator Durbin introduced S. 2377, the proposed `Veterans Health Care Quality Improvement Act.' S. 2377 would establish quality assurance mechanisms in VA medical facilities, and would create additional certification and licensure requirements for VA physicians. S. 2377 is cosponsored by Senator Obama.

On April 2, 2008, Chairman Akaka introduced S. 2796. S. 2796 would require VA to conduct a pilot program on the use of community-based organizations to ensure that transitioning veterans and their families receive the care and benefits to which they are entitled.

On April 2, 2008, Chairman Akaka introduced, by request, S. 2797. S. 2797 would authorize major medical facility projects and major medical facility leases for VA for fiscal year 2009, among other purposes related to facilities.

On April 2, 2008, Senator Murray introduced S. 2799, the proposed `Women Veterans Health Care Improvement Act of 2008.' S. 2799 would require studies of the health care needs of women veterans and of the services available to them from VA, and would require expansion of the services available to women veterans. S. 2799 is cosponsored by Senators Boxer, Brown, Casey, Clinton, Hutchison, Johnson, Lincoln, Mikulski, Murkowski, Rockefeller, Schumer, and Wyden.

On April 17, 2008, Chairman Akaka introduced, by request, S. 2889, the proposed `Veterans Health Care Act of 2008.' S. 2889 would allow VA to contract with community residential care programs for veterans with serious traumatic brain injuries (hereinafter, `TBI'), eliminate copayments for all hospice care, expand continuing education benefits for physicians and dentists, and allow the Secretary of Veterans Affairs (hereinafter, `Secretary') to disclose certain personal information to collect payment from third-party health plans under certain circumstances.

On April 22, 2008, Senator Harkin introduced S. 2899, the proposed `Veterans Suicide Study Act.' S. 2899 would direct VA to conduct a study on suicides among veterans. S. 2899 is cosponsored by Senators Feingold, Grassley, Kerry, Klobuchar, Mikulski, Murray, Obama, Stabenow, and Tester.

On April 28, 2008, Senator Clinton introduced S. 2921, the proposed `Caring for Wounded Warriors Act of 2008.' S. 2921 would create pilot programs on training, certification, and compensation for family caregivers of veterans and members of the Armed Forces withTBI, and on the provision of respite care to such veterans and servicemembers by graduate students at affiliated universities. S. 2921 is cosponsored by Senator Dole.

On April 28, 2008, Chairman Akaka introduced S. 2926, the proposed `Veterans Nonprofit Research and Education Corporations Enhancement Act of 2008.' S. 2926 would authorize multi-medical center nonprofit research corporations (hereinafter, `NPCs'), clarify existing authorities, and strengthen VA oversight of NPCs.

On April 29, 2008, Senator Tester introduced S. 2937. S. 2937 would provide VA with permanent authority to provide health care for participants in certain Department of Defense (DOD) chemical and biological tests, and would expand the study of the impact of Project Shipboard Hazard and Defense (hereinafter, `Project SHAD') on veterans' health.

On May 1, 2008, Senator Bond introduced S. 2963. S. 2963 would, among other things, enhance the mental health care services available to members of the Armed Forces and veterans, and enhance counseling and other benefits available to survivors of members of the Armed Forces and veterans. S. 2963 is cosponsored by Senators Boxer, Clinton, Collins, Dole, Domenici, Grassley, McCaskill, Murkowski, Obama, and Stevens.

On May 6, 2008, Chairman Akaka introduced, by request, S. 2984, the proposed `Veterans' Benefits Enhancement Act of 2008.' S. 2984 would extend VA authorities for certain kinds of long-term care and care for veterans who participated in certain chemical and biological tests conducted by DOD, extend VA authority to continue an audit recovery program, eliminate or modify a number of reporting requirements, modify authorities relating to collections from third parties for certain medical care, authorize disclosure of certain personal information in limited circumstances, increase the threshold for major medical facility leases requiring Congressional approval from $600,000 to $1,000,000, and provide authorities for the operation and upkeep of the VA police force. S. 2984 would also address a number of matters related to veterans' benefits.

On May 8, 2008, Chairman Akaka introduced S. 3000, the proposed `Native American Veterans Access Act of 2008.' S. 3000 would include Federally recognized tribal organizations in certain programs for State veterans homes.

On June 19, 2008, Ranking Member Burr introduced S. 3167. S. 3167 would clarify the conditions under which veterans, their surviving spouses, and their children may be treated as adjudicated mentally incompetent for certain purposes.

On June 23, 2008, Ranking Member Burr introduced S. 3178. S. 3178 would authorize a dental insurance program for veterans, survivors, and dependents of veterans.

On March 11, 2008, the Committee held a hearing on care for families of wounded veterans. Testimony was offered by: Col. Peter Bunce (USAF, Ret.), father of Justin Bunce, a veteran of Operation Iraqi Freedom; Robert Verbeke, father of Daniel Verbeke, a veteran of Operation Iraqi Freedom; Jackie McMichael, wife of Michael McMichael, a veteran of Operation Iraqi Freedom; Lynda Davis, PhD, Deputy Assistant Secretary of the Navy for Military Personnel Policy, Department of the Navy; Kristen Day, LCSW, Chief Consultant, Care Management and Social Work, Office of Patient Care Services, Veterans Health Administration, Department of Veterans Affairs; Jane Dulin, LCSW, Supervisor, Soldier Family Management Branch, U.S. Army Wounded Warrior Program; and Steven Sayers, PhD, Clinical Psychologist, Philadelphia VA Medical Center and Assistant Professor of Psychology in Psychiatry and Medicine, University of Pennsylvania School of Medicine.

On April 9, 2008, the Committee held an oversight hearing on personnel issues within VA. Testimony was offered by: Marisa W. Palkuti, MEd, Director, Healthcare Retention and Recruitment Office, Veterans Health Administration, Department of Veterans Affairs; Sheila M. Cullen, Director, San Francisco VA Medical Center; Steven P. Kleinglass, Director, Minneapolis VA Medical Center; Marjorie Kanof, MD, Managing Director, Health Care, Government Accountability Office; John A. McDonald, MD, PhD, Vice President for Health Sciences and Dean, University of Nevada School of Medicine, on behalf of the Association of American Medical Colleges; Valerie O'Meara, NP, VA Puget Sound Health Care System, Professional Vice President, American Federation of Government Employees Local 3197; Randy Phelps, PhD, Deputy Executive Director, American Psychological Association Practice Directorate; and Jennifer L. Strauss, PhD, Health Scientist, Center for Health Services Research in Primary Care, Durham VA Medical Center, and Assistant Professor, Department of Psychiatry and Behavioral Sciences, Duke University Medical Center, on behalf of the Friends of VA Medical Care and Health Research.

On May 21, 2008, the Committee held a hearing on pending health care legislation. Testimony was offered by: Gerald M. Cross, MD, Principal Deputy Under Secretary for Health, Department of Veterans Affairs; accompanied by Walter Hall, Assistant General Counsel; and Kathryn Enchelmayer, Director, Quality Standards, Office of Quality and Performance, Veterans Health Administration; Carl Blake, National Legislative Director, Paralyzed Veterans of America; Joseph L. Wilson, Assistant Director for Health Policy, Veterans Affairs and Rehabilitation Commission, The American Legion; Joy J. Ilem, Assistant National Legislative Director, Disabled American Veterans; Chris Needham, Senior Legislative Associate, National Legislative Service, Veterans of Foreign Wars; Stan Luke, PhD, Vice President for Programs, Helping Hands Hawaii; J. David Cox, RN, National Secretary-Treasurer, American Federation of Government Employees; Cecilia McVey, MHA, RN, Former President, Nurses Organization of Veterans Affairs; Donna Lee McCartney, Chair, National Association of Veterans' Research and Education Foundations; Thomas Berger, PhD, Chair, National PTSD and Substance Abuse Committee, Vietnam Veterans of America; and Sally Satel, MD, Resident Scholar, American Enterprise Institute.

COMMITTEE MEETING

After carefully reviewing the testimony from the foregoing hearings, the Committee met in open session on June 26, 2008, to consider, among other legislation, an amended version of S. 2969, consisting of provisions from S. 2969 as introduced, from other legislation noted above, and several freestanding provisions. The Committee voted unanimously to report favorably S. 2969, as amended.

SUMMARY OF S. 2969 AS REPORTED

S. 2969, as reported, (hereinafter, `the Committee bill') would amend the title of the original bill, and would make numerous enhancements and expansions to VA health care and services.

TITLE I--DEPARTMENT PERSONNEL MATTERS

Section 101 would authorize VA to extend title 38, United States Code (U.S.C.), employment status to certain employees; amend salary authorities for certain VA positions; amend the statute governing certain work schedules; amend the statute governing transparency and conduct of locality pay surveys; and enhance other authorities to improve recruitment and retention of medical professionals.

Section 102 would impose limitations on overtime duty and would amend the statutes governing weekend duty and alternative work schedules for nurses.

Section 103 would reauthorize and expand certain educational assistance programs to improve recruitment and retention.

Section 104 would establish standards for appointment and practice of physicians in VA medical facilities.

TITLE II--HEALTH CARE MATTERS

Section 201 would repeal the sunset provision on the inclusion of non-institutional extended care services in the definition of medical services.

Section 202 would extend the authorities of nursing home care, research corporations, and recovery audits.

Section 203 would provide permanent authority for the provision of hospital care, medical services, and nursing home care to veterans who participated in certain chemical and biological testing conducted by DOD.

Section 204 would repeal the annual reporting requirements on nurse pay and long-term planning.

Section 205 would amend the annual Gulf War research report by changing the report due date.

Section 206 would mandate that payment by VA on behalf of a covered beneficiary for the Civilian Health and Medical Program of VA (hereinafter, `CHAMPVA') medical care shall constitute payment and eliminate any liability on the part of the beneficiary for that care.

Section 207 would modify authorities relating to collections from third parties for medical care, including care provided to children of Vietnam veterans born with spina bifida or birth defects.

Section 208 would authorize VA to make disclosures from certain medical records under limited circumstances.

Section 209 would require the disclosure to the Secretary of health plan contract information and social security numbers of certain veterans receiving care from VA.

Section 210 would require the designation of a National Quality Assurance Officer, and a Quality Assurance Officer for each VA facility.

Section 211 would require a report on Department health care quality assurance.

Section 212 would require VA to establish a pilot program on training and certification for family caregivers and personal care attendants for veterans of the Armed Forces with TBI.

Section 213 would require VA to establish a pilot program on the provision of respite care to members of the Armed Forces and veterans with TBI by students in graduate programs of education related to mental health or rehabilitation.

Section 214 would require VA to establish a pilot program on the use of community-based organizations to ensure that transitioning veterans and their families receive the care and benefits they need.

Section 215 would authorize VA to contract with appropriate entities for specialized residential care and rehabilitation for certain Operation Iraqi Freedom or Operation Enduring Freedom (hereinafter, `OIF/OEF') veterans with TBI.

Section 216 would exempt veterans receiving hospice care from copayment requirements.

Section 217 would repeal the limitation on the authority of the Secretary to conduct a widespread human immunodeficiency virus (hereinafter, `HIV') testing program.

Section 218 would authorize VA to disclose medical records to a third party for collection of charges for care or services provided for a non-service-connected disability.

Section 219 would require VA to establish an expanded study on the health impact of Project SHAD.

Section 220 would require VA to provide care and services to certain individuals in non-Department facilities under limited circumstances.

Section 221 would authorize tribal organizations to access the construction grants and per diem payments provided under the State Veterans Home Program in the same manner as other eligible entities.

Section 222 would authorize the extension of the pilot program on improvement of caregiver assistance services through fiscal year 2009.

Section 223 would require VA to establish a pilot program on the provision of dental insurance plans to veterans, survivors, and dependents of veterans.

TITLE III--WOMEN VETERANS HEALTH CARE

Section 301 would require VA to report on the barriers to women veterans' access to VA health care.

Section 302 would require VA to develop a plan to improve the provision of health care services to women veterans.

Section 303 would require an independent study on the health consequences of service in OIF/OEF for women veterans.

Section 304 would require VA to implement a program of training and certification for VA mental health care providers on care for veterans suffering from military sexual trauma.

Section 305 would require VA to establish a pilot program on counseling in retreat settings for women veterans newly separated from service in the Armed Forces.

Section 306 would require a report on full-time women veterans' program managers at VA medical centers.

Section 307 would require the Advisory Committees on Women Veterans and Minority Veterans to include women veterans recently separated from service in the Armed Forces.

Section 308 would require VA to establish a pilot program on child care for certain veterans receiving health care from VA.

TITLE IV--MENTAL HEALTH CARE

Section 401 would establish eligibility for members of the Armed Forces who served in OIF/OEF for readjustment counseling and related mental health services through the Readjustment Counseling Service of the Veterans Health Administration.

Section 402 would restore the authority of the Readjustment Counseling Service to provide referral and other assistance to former members of the Armed Forces not otherwise authorized for counseling.

Section 403 would require VA to conduct a study on suicides among veterans since January 1, 1997, and report to Congress on the findings.

Section 404 would require VA to transfer $5,000,000 to the Secretary of Health and Human Services for the Graduate Psychology Education program.

TITLE V--HOMELESS VETERANS

Section 501 would authorize VA to establish a pilot program to make grants to public and nonprofit organizations that coordinate the provision of supportive services to formerly homeless veterans residing on certain military property.

Section 502 would authorize VA to establish a pilot program to make grants to public and nonprofit organizations that coordinate the provision of supportive services to formerly homeless veterans residing in permanent housing.

Section 503 would authorize VA to establish a pilot program to make grants to public and nonprofit organizations that provide outreach to inform low-income and elderly veterans who reside in rural areas about pension benefits.

Section 504 would authorize VA to establish a pilot program on financial support of entities that provide transportation assistance, childcare assistance, and clothing assistance to veterans entitled to certain rehabilitation services.

Section 505 would require assessments of the pilot programs authorized by sections 501 through 504.

Section 506 would increase the authorization for the Homeless Grant and Per Diem (GPD) Program from $130,000,000 to $200,000,000.

TITLE VI--NONPROFIT RESEARCH AND EDUCATION CORPORATIONS

Section 601 would authorize multi-medical center NPCs, expand existing corporations to multi-medical center research corporations, amend authorities on the applicability of state law, clarify the status of corporations, and reinstate the requirement of 501(c)(3) status of corporations.

Section 602 would clarify the purpose of NPCs.

Section 603 would amend the requirements for VA and non-VA Board Members.

Section 604 would amend and clarify the provision on general powers of corporations.

Section 605 would redesignate section 7364A of title 38, U.S.C., as section 7365.

Section 606 would amend the provision on reporting by adding additional information to be reported on; amend the provision related to the confirmation of application of conflict of interest regulations to include appropriate corporation positions; and authorize establishment of an appropriate payee reporting threshold.

Section 607 would repeal the provision that sunsets the authority for corporations after December 31, 2008.

TITLE VII--CONSTRUCTION

Section 701 would authorize funds for fiscal year 2009 major medical facility projects.

Section 702 would extend the authorization for major medical facility construction projects previously authorized.

Section 703 would authorize funds for fiscal year 2009 major medical facility leases.

Section 704 would authorize the appropriation of $1,902,014,000 for the projects authorized by sections 701 through 703.

Section 705 would increase the threshold for major medical facility leases requiring congressional approval from $600,000 to $1,000,000.

Section 706 would approve the conveyance of certain non-federal land by the city of Aurora, CO, to the Secretary for construction of a VA medical facility.

TITLE VIII--MISCELLANEOUS PROVISIONS

Section 801 would expand the authority for VA police officers.

Section 802 would provide a uniform allowance for VA police officers.

Section 803 would clarify the conditions under which veterans, their surviving spouses, and their children may be treated as adjudicated mentally incompetent for certain purposes.

BACKGROUND AND DISCUSSION

TITLE I--DEPARTMENT PERSONNEL MATTERS

Title I of the Committee bill contains a variety of provisions that are designed to help ensure that VA has the workforce necessary to serve America's veterans most effectively.

Health care providers are the backbone of the VA system. Yet today, it is clear, based on information received by the Committee during its April 9, 2008, oversight hearing on the Veterans Health Administration (hereinafter, `VHA') personnel issues, entitled `Making VA the Work Place of Choice for Health Care Professionals,' and from myriad other sources, that VA faces a looming shortage of health care personnel and that this situation will only worsen in the coming years without focused effort to improve VA's ability to attract and retain needed employees. A recent report by the Partnership for Public Service, titled Where the Jobs Are: Mission Critical Opportunities for America (2nd edition, 2007), gave the VHA poor marks for pay and benefits, and for family support. VHA also rated poorly among younger employees. To be the health care employer of choice, VA must be able to offer competitive salaries, work schedules, and benefits.

In recent years, VA has faced changing demands for health care and for increasing competition for health care professionals. The Bureau of Labor Statistics showed an 18.4 percent increase in employment in the health care industry in 2006, and noted that employment rose significantly in hospitals, ambulatory health care settings, and nursing and residential care. With an aging veteran population, and a shift towards non-institutional care, VA has increased hiring of home health aides and nurses significantly. The return of servicemembers from the conflicts in Iraq and Afghanistan has brought new demands for specialized mental health, trauma, rehabilitation, and other care.

Health care professionals employed by VA are hired under a variety of authorities--the regular, government-wide, personnel hiring authorities in title 5, United States Code (U.S.C.); the VA-specific personnel authority in title 38, U.S.C., and a hybrid employment system that relies on features of both title 5 and title 38 authorities. The employment of persons in occupations--physicians, dentists, podiatrists, chiropractors, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries--listed in section 7401(1) of title 38, U.S.C., is governed entirely by the title 38 system. Other occupations, listed in section 7401(3), are referred to as hybrid employees.

The title 38 appointment system, established shortly after World War II, was designed to be more flexible than the title 5 system. It provides an employment process and compensation policies and practices that are helpful to VA in effectively recruiting and retaining health care providers. For example, under title 38, prospective hires are not required to go through the competition and ranking process to establish eligibility for employment, as is required under title 5.

Beginning in 1983, with the passage of the `Veterans Health Care Amendments of 1983,' Public Law 98-160, Congress authorized VA to hire, advance, and pay certain health care providers under title 38, while leaving those personnel under the title 5 personnel system for other purposes. The appointment of individuals to these so-called `hybrid' occupations is governed by title 38, while pay and grievances are governed by title 5. Hybrid employees are also eligible for additional premium pay, if the Secretary determines it necessary for the purposes of recruitment and retention.

Public Law 98-160 authorized VA to appoint and advance licensed practical/vocational nurses (LPNs/LVNs), physical therapists, and respiratory therapists under the hybrid system. Additional occupations were included in 2003, under Public Law 108-170, in 2004, under Public Law 108-422, and in 2006, under Public Law 109-461.

VA has indicated that this title 38 hybrid employment system permits the Department to proactively respond to recruitment and retention issues and reduces the costs associated with these issues.

Sec. 101. Enhancement of authorities for retention of medical professionals.

Section 101 of the Committee bill, which is derived from S. 2969, as introduced, contains a number of provisions that would amend a variety of specific personnel authorities in title 38, United States Code, so as to give the Secretary additional tools to retain health care personnel.

Subsec. 101(a)--Secretarial authority to extend title 38 status to additional positions.

Background. The unique features of the title 5, title 38, and title 38 hybrid personnel systems have resulted in uneven conditions of employment for some employees working in the same occupational series and occupational groups. For example, corrective therapy Assistants, hired under title 5, provide services under the same occupational series as occupational therapy assistants and physical therapy assistants, hired as title 38 hybrids. All three work in the same organizational units providing rehabilitation therapy, but are hired and employed under different conditions.

In addition, testimony submitted by VA for the record of the May 21, 2008, Committee hearing, stated that nurse assistants, in particular, are a high priority position that has proven difficult to fill. Furthermore, turnover of nurse assistants is fairly high.

Committee Bill. Subsection (a)(1) of section 101 of the Committee bill would amend section 7401(3) of title 38, so as to give the Secretary of VA the authority to apply the title 38 hybrid employment system to additional health care occupations when such action is deemed necessary to meet recruitment or retention needs. The Secretary would be required to notify the House and Senate Committees on Veterans' Affairs and the Office of Management and Budget (OMB) 45 days prior to implementing a decision to convert an occupation to the hybrid system. Prior to Congressional and OMB notification, VA would be required to notify labor organizations representing VHA employees in occupations being considered for inclusion, in order to seek their comments.

In testimony submitted for the record of the Committee's May 21, 2008, hearing, VA indicated that it supports the provisions of this subsection as this change would give the Secretary the ability to react quickly, through the title 38 hiring process, to bring on additional employees.

Subsection (a)(2) of section 101 of the Committee bill would further amend section 7401(3) by adding nurse assistants to the list of occupations eligible for appointment under title 38. By bringing this position under the title 38 hiring process, VA will have the ability to expedite hiring to fill nurse assistant positions.

In accordance with the original purpose for a separate title 38 hiring system, it is the Committee's intent that VA continue to have the ability to expedite the hiring of certain health care personnel. The Committee is aware that, as presently implemented, the hiring process under title 38 has not proven as expeditious as intended and that concerns have been raised that adding additional professions to the list of hybrid positions could overburden the title 38 hybrid employment system. It is the Committee's belief, however, that VA has the capacity, resources, and responsibility to resolve the obstacles to expedited hiring under title 38.

In testimony submitted for the Committee's May 21, 2008, hearing, VA indicated that it supports the provisions of subsection (a)(2) of this section of the Committee bill. VA cited data showing turnover rates of 10.5 percent for 2006 and 11.1 percent for 2007, which illustrate the great difficulty VA experiences in retaining nurse assistants.

Subsec. 101(b) and (c)--Probationary periods for registered nurses, and prohibition on temporary part-time registered nurse appointments in excess of 4,180 hours.

Subsections (b) and (c) of section 101 of the Committee bill are addressed below together, as they are dependent upon each other, and address similar issues.

Subsection (b) would modify the terms of the probationary period that registered nurses must serve upon employment by VA, and subsection (c) would limit the extent of a temporary appointment of part-time registered nurses.

Background. Subsection 7403(b) of title 38, U.S.C., provides that appointments of health care providers under that section shall be for a probationary period of two years. The probationary period serves to ensure an appropriate time of observation and vetting before an employee becomes permanent.

Currently, part-time RNs are employed by VA on a temporary basis under section 7405 of title 38. As temporary employees, they are not eligible for the same job protection and grievance rights as employees appointed under section 7403 who have completed the probationary periods. Further, when an employee transitions from full to part-time, they are considered employees under section 7405, with commensurate loss of rights and protections. Valerie O'Meara, NP, representing the American Federation of Government Employees, testified before the Committee on April 9, 2008, about her experience switching from full- to part-time status to raise a family. She explained that she lost her grievance and arbitration rights, and was not permitted to contest Reductions-In-Force decisions. Further, she described the cases of older nurses who have worked a decade or more for the VA who switch to part-time because of the stress of their job or to care for their aging parents. The Committee believes VA would benefit from retaining the expertise of these registered nurses, even on a part-time basis.

VA has been challenged to fill RN positions due to rising demand for these professionals. In testimony submitted for the record of the Committee's April 9, 2007, hearing, Ann Converso, RN, President of United American Nurses, AFL-CIO, stated that `[t]here exists a health care crisis in our country regarding the shortage of registered nurses * * *. As nurses leave the VA system, new nurses are not joining the VA at comparable rates, and patient load is increasing.' According to the testimony of Sheila M. Cullen, Director, San Francisco VA Medical Center, at that same hearing, more than 29 percent of the employees at the San Francisco VA Medical Center are eligible to retire.

Committee Bill. Subsections (b) and (c) of section 101 of the Committee bill would clarify the terms of a probationary period under section 7403 of title 38, U.S.C., and address the inequity faced by part-time nurses under section 7405 of title 38.

Subsection (b) would amend section 7403(b) by adding two new paragraphs. New paragraph (2) would mandate that an appointment of a registered nurse under the section, whether on a full- or part-time basis, shall be for a probationary period of a length considered appropriate by VA but in any event no more than 4,180 hours. The intent of this provision is to establish a maximum duration of the probationary period that can be applied equitably to both full- and part-time appointments. Further, it provides the Secretary with additional authority to reduce the duration of the probationary period.

New paragraph (3) would mandate that an appointment on a part-time basis under section 7403 of a health care professional who has previously served on a full-time basis shall be without a probationary period. This provision would clarify that no registered nurse (RN), who has already served a probationary period, would be required to serve a probationary period upon switching from a full-time to a part-time appointment. The Committee sees no utility in requiring an RN who has served a probationary period on a full-time basis to serve an additional probationary period.

Subsection (c) of section 101 would amend section 7405 of title 38, to add a new subsection (g). The proposed new subsection would specify that the appointment of an RN on a temporary part-time basis under section 7405 would be for a probationary period, as defined under section 7403(b), as would be amended by subsection (b) of section 101 of the Committee bill. Upon completion of the probationary period, the appointment would no longer be considered temporary, and would instead be considered an appointment under 7403(a). Pursuant to this change, and the completion of the probationary period, all temporary part-time appointments of RNs would be considered permanent.

It is the Committee's intent that the amendments to sections 7403 and 7405 will eliminate disincentives to part-time employment of RNs in VA. Many RNs, after serving a full career in VA, or in response to family concerns, are faced with the decision to either retire from VA or transition to part-time service. Informed by the testimony presented at the Committee hearings on April 9, 2008, and May 21, 2008, the Committee believes VA would benefit from the service that these registered nurses would provide on a part-time basis. Further, increased use of part-time registered nurses will help VA fully staff facilities and better meet the rising demand for health care services.

It is not the intent of the Committee bill to prevent or limit the hiring of part-time nurses beyond the probationary period. Rather, the Committee intends that upon completion of such period, the appointment be considered permanent, with all accompanying benefits and privileges.

Carl Blake, National Legislative Director, Paralyzed Veterans of America, in testimony before the Committee on May 21, 2008, voiced support for the provision to eliminate the probationary period for RNs who transition from full-time to part-time.

Subsec. 101(d)--Waiver of offset from pay for certain reemployed annuitants.

Subsection (d) of section 101 of the Committee bill would authorize VA to waive salary offsets for retirees who are reemployed in VHA.

Background. Under current law, the salary of a VHA employee rehired after retirement from the Federal government is reduced according to the amount of their annuity under a government retirement system. The reduction is required by sections 8344 and 8468 of title 5, U.S.C., which deal with annuity payments upon reemployment.

VHA faces a growing wave of retirements at all levels of administration and health care providers. According to VA, at the end of 2006, 56 percent of medical center directors were eligible for retirement, and by 2013 over 90 percent of these key personnel will be eligible for retirement. Many of the likely successors for the director positions, current Associate Directors, are also retirement eligible. VA projects that by 2013, 95,019 VHA employees will be eligible to retire, including 97 percent of current senior executives, 81 percent of facility Chiefs of Staff, and 91 percent of nurse executives. This rate of retirement eligibility is unprecedented, and the sudden loss of the experience and expertise of these employees would seriously limit VA's ability to deliver care.

Because reemployed annuitants receive only that portion of their salary that is above their annuity payment, there is little incentive under the current employment system to return to VA employment. Annuitants who wish to continue working are able to receive full pay from a non-government employer, in addition to their annuity, something they can not do at VA.

In testimony before the Committee on May 21, 2008, Cecilia McVey, MHA, RN, former President of the Nurses Organization of Veterans Affairs, said that `During this time of a critical nursing shortage, it is more important than ever to keep these valuable resources to provide the best care to veterans.'

Rehiring annuitants addresses issues arising from the high number of retirements facing VA. Increased employment of annuitants would potentially limit costs by reducing the use of expensive contract agreements. Retaining experienced professionals while younger employees develop their capabilities would also ensure the transfer of valuable institutional knowledge from one generation of leaders to another within VA.

A program which allows the Government Accountability Office to temporarily hire retirees, without a salary offset, for the purposes of training, education, and mentoring, has proven successful.

Committee Bill. Subsection (d) of section 101 of the Committee bill would amend section 7405 of title 38 so as to add a new subsection (g) which would authorize the Secretary to waive sections 8344 and 8468 of title 5, U.S.C., on a case-by-case basis when reemploying an annuitant on a temporary basis. This section would further require that an annuitant to whom a waiver under the proposed new section (g) is granted be subject to the provisions of chapter 71 of title 5, relating to the protection of government employees from discrimination and retaliation.

By authorizing the Secretary to waive these two sections of title 5, the Committee intends to encourage retirees to return to work at VHA. At present, many VA employees go on to work outside of VA after retiring from VA, with some even returning to work at VA on a contract basis. By eliminating the salary offset, it is the Committee's hope that there will be a significant pay incentive that will encourage annuitants to return to VA, rather than seeking employment elsewhere.

Subsec. 101(e)--Rate of basic pay for appointees to the Office of the Under Secretary for Health set to rate of basic pay for senior executive service positions.

Subsection (e) of section 101 of the Committee bill would amend section 7404(a) of title 38, U.S.C., to set the rate of basic pay for appointees to the Office of the Under Secretary for Health.

Background. Under current law, non-physician and non-dentist appointees under section 7306 of title 38, which relates to the composition of VA's Office of Under Secretary for Health, including the Director of Pharmacy Benefits Management Strategic Health Group, the Director of Dietetics, the Director of Podiatry, and the Director of Optometry, among others, serve in executive level positions that are equivalent in scope and responsibility to positions in the Senior Executive Service (SES), which includes senior managers and administrators in the VA Central Office, among others. The pay level for section 7306 appointees is adjusted each year by Executive Order, as authorized by chapter 53 of title 5, and is capped, by subsection 7404(d) of title 38, U.S.C., at the pay rate for Level V of the Executive Schedule, currently just over $139,600 including locality pay. VA employees in the SES, on the other hand, can receive pay up to Level II of the Executive Schedule, currently $172,200.

According to VA, the disparity between pay levels for SES and non-SES employees serving in similar capacities has led to difficulties in recruiting and retaining non-SES executive level managers. Executives in these positions provide valuable input to the Under Secretary for Health (USH), and manage significant elements of VHA.

Committee Bill. Subsection (e) of section 101 of the Committee bill would amend section 7404(a) of title 38 so as to add a paragraph that would mandate that pay for certain appointees to the Office of the Under Secretary for Health be set according to the SES. This change would be effective on the first day of the first pay period beginning the day after 180 days after the date of enactment of this legislation.

This change would effectively establish that, for the purposes of basic pay, all senior executives in the Office of the Under Secretary for Health would receive pay based on Level II of the Executive Schedule. By implementing a uniform pay scale for all senior executives in that office, the Committee believes VA will be better able to recruit and retain highly qualified individuals.

This provision was developed in close cooperation with VA, and VA indicated its support for this subsection in testimony submitted for the record of the Committee's May 21, 2008, hearing.

In testimony before the Committee on May 21, 2008, Thomas Berger, PhD, Chair of the National PTSD and Substance Abuse Committee, Vietnam Veterans of America (VVA), expressed VVA's support for additional pay `to enhance recruitment and retention of top professionals to run the VA health care system.'

Subsec. 101(f)--Comparability pay program for appointees to the Office of the Under Secretary for Health.

Background. VA is challenged match the compensation offered by non-Federal employers to senior executives. The past decade has seen significant changes in VA health care. In order to maintain its position as a premier health care provider, VHA will require a corps of dedicated, skilled, and experienced senior executives to carry out the responsibilities involved in delivering care to veterans. The Committee believes that VA must deal with pay inequities proactively.

Committee Bill. Subsection (f) of section 101 of the Committee bill would amend section 7410 of title 38, relating to additional pay authorities for VHA employees, so as to authorize VHA to pay `comparability pay' of not more than $100,000 per employee to non-physician/dentist section 7306 employees and VHA SES employees. This pay would be authorized so that VHA could achieve annual pay levels competitive with the private sector, and to relieve pay compression over the complex range of senior executive positions. This special pay would be in addition to all pay, awards, and performance bonuses provided under SES or 7306 authorities. Under the Committee bill, the higher special pay amounts would be reserved only for the most senior VHA executive positions and, when added to basic pay and bonus compensation, would be capped at the annual pay of the President.

Subsec. 101(g)--Special incentive pay for Department pharmacist executives.

Background. VA is challenged match the compensation offered by non-Federal employers to senior executives, including National Pharmacist Executives (NPEs). NPEs include managers of the VA National Formulary, Directors of the Consolidated Mail Outpatient Pharmacies, Consultants to the Secretary for pharmacy issues, Network Pharmacy Benefits Managers, and the Director of Emergency Pharmacy Services. Under current law, basic salaries for NPEs are set according to the General Schedule, which caps salaries for these positions between $140,000 and $145,000, with up to $5,000 in bonuses. According to surveys conducted by VA, salary ranges for national and regional pharmacy executives are between $180,000 and $225,000. Further inducements commonly available in the private sector include profit sharing or stock options, yearly bonuses well above the $5,000 currently available from VA, recruitment and retention bonuses, and corporate vehicles for individuals in regional positions.

VA has been challenged to fill NPE positions in recent years, due largely to the pay disparity between VA and the private sector, and the lack of financial incentive to take on responsibilities at the national and regional level. In addition, applications for Chief of Pharmacy positions at VA facilities, the primary source of future NPEs, have fallen off dramatically. The Workforce Succession Strategic Plan for VHA FY 2006-2010 (October, 2005), listed pharmacists second only to RNs as national priorities for recruitment and retention.

Committee Bill. Subsection 101(g) of the Committee bill would further amend section 7410, relating to additional pay authorities, to authorize recruitment and retention special incentive pay for pharmacist executives of up to $40,000. The determination of whether to provide such pay, and its amount, would be based on: grade, step, scope and complexity of the position, personal qualifications, characteristics of the labor market concerned, and such other factors as the Secretary considers appropriate. As with the comparability pay that would be authorized by subsection (f) of the Committee bill, this provision would provide that such pay would be in addition to other pay, awards, and bonuses.

Subsec. 101(h)--Pay for physicians and dentists.

Subsection 101(h) of section 101 of the Committee bill would make three separate amendments to section 7431 of title 38, relating to pay for physicians and dentists.

Committee Bill. Paragraph (1) of subsection (h) would clarify the determination of the non-foreign cost of living adjustment (COLA), authorized by section 7431(b) of title 38, U.S.C. The COLA is provided to employees in locations with substantially higher costs of living than those of Washington, DC, and or environmental conditions that differ substantially from those in the continental United States. Similar provisions, applied to other government employees, exist in section 5941 of title 5, U.S.C.

Paragraph (1) of subsection 101(h) of the Committee bill would amend section 7431(b) so as to add a new paragraph that would provide that the non-foreign cost of living adjustment allowance authorized under section 5941 of title 5, U.S.C., shall, in the case of VA physicians and dentists, be determined as a percentage of base pay only. Section 7431(b) currently does not specify the basis for the determination of the allowance, which has led to inconsistent determinations.

Paragraph (2) of subsection (h) would amend section 7431(c)(4)(B)(i) to exempt physicians and dentists in executive leadership provisions from the panel process in determining the amount of market pay and tiers for such physicians and dentists. Market pay is `pay intended to reflect the recruitment and retention needs for the specialty or assignment * * * of a particular physician or dentist' in a VA facility. Under current law, the Secretary is to take into account the views of `an appropriate panel or board' in determining the amount of market pay for an individual physician or dentist. In cases where such physicians or dentists in question occupy executive leadership positions such as chief officers, network directors, and medical center directors, the consultation of a panel has some limitations. The small number of providers who would qualify as peers for the executive leaders results in their serving on each other's compensation panels. This amendment will provide the Secretary with discretion to identify executive physician/dentist positions that do not require a panel process.

Paragraph (3) of subsection (h) would amend section 7431(c)(7) of title 38, so as to allow an exception to the prohibition in current law on a reduction in market pay when a physician or dentist remains in the same position or assignment. The exception would allow for a reduction in market pay when there has been a change in board certification or a reduction of privileges, even when the individual remains in a position or assignment. By allowing such reduction in market pay, the Committee bill would prevent a physician or dentist from receiving additional market compensation for credentials and or privileges he or she may no longer possess.

In testimony submitted for the record of the Committee hearing on May 21, 2008, VA indicated support for the provisions in subsection 101(h) of the Committee bill.

Subsec. 101(i)--Adjustment of pay cap for nurses.

Subsection (i) of section 101 of the Committee bill relates to pay for RNs.

Background. Under current law, section 7451 of title 38 governs basic pay levels for VA RNs, and certain other VA employees. Section 7451(c)(2) mandates that the maximum rate of basic pay for any grade for a covered position, including RNs, may not exceed the maximum rate of basic pay established for positions in level V of the Executive Schedule under section 5316 of title 5, U.S.C. Level V is currently set at $139,600.

In testimony submitted for the Committee's April 9, 2008, hearing, Ms. Converso cited a `crisis in our country regarding the shortage of registered nurses.' At the same hearing, Marisa W. Palkuti, M.Ed., Director, Healthcare Retention and Recruitment Office, VHA, cited a growing inadequacy in the number of health care workers, including RNs, nationwide, and suggested that `[t]his shortfall will grow exponentially over the next 20 years.'

During that hearing, Sheila M. Cullen, the then-Director of the San Francisco VA Medical Center, testified about her efforts to retain nurses. To compete with other health care employers in the region, and to address the high cost of living, Ms. Cullen has instituted salary increases for RNs between 5 and 8 percent annually in recent years.

The current level V cap often prevents VA registered nurses from receiving locality pay. Locality pay, which is in addition to basic pay, is based on compensation levels in a local labor market. When a nurse's basic pay is equal to the level V cap, no additional locality pay can be awarded, regardless of conditions in local labor market, a result that has a detrimental effect on recruitment and retention.

Committee Bill. Subsection (i) of section 101 of the Committee bill would amend section 7451(c)(2) of title 38, so as to adjust the pay cap for registered nurses and others in covered positions from Level V to Level IV. Level IV is currently set at $149,000, according to OMB. By raising the cap on nurse basic pay by $9,400, the Committee intends to provide VA with additional flexibility to compete in local labor markets. Based on testimony presented at Committee hearings, and on oversight activities, the Committee believes that additional pay would improve VA's ability to recruit and retain qualified nurses.

This provision was supported by the American Federation of Government Employees in testimony before the Committee on April 9 and May 21, 2008. Also, in testimony before the Committee on May 21, 2008, Cecilia McVey, MHA, RN, Former President of the Nurses Organization of Veterans Affairs, called for the increase in the cap on RN pay proposed by the Committee bill.

Subsec. 101(j)--Exemption for certified registered nurse anesthetists from limitation on authorized competitive pay.

Subsection (j) of section 101 of the Committee bill would allow pay for certified registered nurse anesthetists (CRNAs) to exceed the pay caps established for RNs employed by VA.

Background. As discussed above, under subsection 101(i), current law limits pay for CRNAs at level V of the Executive Schedule, currently $139,600. Additional compensation may be provided to CRNAs in the form of recruitment and/or retention bonuses. As is currently the case with RNs, the level V cap often prevents CRNAs from receiving locality pay.

In December 2007, the Government Accountability Office released a report on CRNA retention, titled `Department of Veterans Affairs (VA) medical facilities have challenges in recruiting and retaining VA CRNAs for their workforce' (GAO-08-56). GAO found that about three-fourths of all VA medical facility chief anesthesiologists responding to the survey reported that they had difficulty recruiting CRNAs. Overall, 54 percent of VA medical facility chief anesthesiologists reported temporarily closing some operating rooms and 72 percent reported delaying some elective surgeries due to difficulty fully staffing CRNAs. GAO projected that 26 percent of VA's CRNAs will either retire from or leave VA in the next 5 years. VA medical facility officials reported that the recruitment and retention challenges are caused primarily by the low level of VA CRNA salaries when compared with CRNA salaries in local market areas.

In testimony before the Committee on April 9, 2008, Ms. Cullen, and Steven P. Kleinglass, Director of the Minneapolis VA Medical Center, both discussed the challenges created by the current limit on CRNA pay. Mr. Kleinglass noted that at the Minneapolis VAMC, the VA pay scale falls behind the local medical community as a whole, and that `therefore, in theory, we should have most of our employees on a retention bonus.' Ms. Cullen, in San Francisco, is prevented from offering locality pay due to the statutory limit, even though the local median salary for CRNAs is $171,334. As a result, she has had to implement the 25 percent retention incentive extensively. At the same hearing, Ms. O'Meara echoed these concerns. `Facilities around the country are finding it increasingly difficult to recruit CRNAs.'

Committee Bill. Subsection (j) of section 101 of the Committee bill would further amend section 7451(c)(2) of title 38, as amended by subsection 101(i) of the Committee bill, to allow pay for CRNAs to exceed the pay caps established for RNs employed by VA.

This proposed exemption would provide VA with greater flexibility to offer additional pay to CRNAs, a necessary tool when CRNA positions prove difficult to fill due to insufficient compensation.

This proposed amendment was endorsed in testimony before the Committee on May 21, 2008, by Carl Blake, National Legislative Director, Paralyzed Veterans of America and J. David Cox, RN, National Secretary-Treasurer, American Federation of Government Employees.

Subsec. 101(k)--Locality pay scale computation.

Subsection 101(k) of the Committee bill would amend section 7451(d)(3) of title 38, U.S.C., to improve implementation and transparency of VA's locality pay system for nurses and others in covered positions.

Background. Section 7451(d) of title 38 currently authorizes a locality pay system (LPS) to address geographically-related pay issues, and to strengthen recruitment and retention of nurses and others in covered positions. That section mandates that pay for personnel in covered positions at each facility be adjusted periodically to reflect changing pay rates in local labor markets. The director of each facility is charged with using data from the Bureau of Labor Statistics (BLS) to determine prevalent pay rates, and to make necessary adjustments to the pay of nurses and others in covered positions employed by the facility in question. When BLS data are not available, the director is required to use data provided by a third party. If no third party data are available, the director is required to conduct a locality pay survey to determine prevalent pay rates. Each locality pay schedule, of which there are nearly 800, is required to be reviewed and approved by the USH.

In the report titled `Many Medical Facilities Have Challenges Recruiting and Retaining Nurse Anesthetists' (GAO-08-56, December, 2007), GAO found that, in 2005 and in 2006, over half of VA medical facilities used the LPS to determine whether to adjust VA CRNA salaries. However, in the eight VA medical facilities visited, GAO found that the majority of the facilities did not correctly follow VA's LPS policy. Officials at these facilities did not always know or were not aware of certain aspects of the LPS policy, and VA has not provided training on the LPS to VA medical facility officials since the policy was changed in 2001. As a result, GAO found that VA medical facility officials cannot ensure that VA CRNA salaries have been adjusted as needed to be competitive. While the report dealt only with CRNAs, the conclusions regarding faulty implementation of the LPS are likely applicable to others in covered positions, based on Committee oversight activities.

The failure to properly implement the LPS runs the risk of negatively effecting recruitment and retention, and inappropriately limits the pay of nurses and others who continue their employment at VA. Further, due to a lack of transparency of the LPS process, employees do not have reasonable access to the surveys that determine locality pay.

Committee Bill. Subsection (k)(1) of section 101 of the Committee bill would add a new subparagraph (F) to section 7451(d)(3) of title 38. Proposed new subsection (F) would require the USH to provide appropriate education, training, and support to directors of Department health care facilities in the conduct and use of LPS surveys. The Committee intends for this change to address the inadequate training found by GAO.

In testimony before the Committee on April 9, 2008, Ms. O'Meara emphasized the need for adequate training in the use and implementation of the LPS. At the Committee hearing on May 21, 2008, Mr. Cox stated that `management training on the nurse locality pay process will increase compliance with the 2000 nurse locality pay law [The Veterans Benefits and Health Care Improvement Act of 2000, Public Law 106-419] that Congress enacted to address recruitment and retention.'

In testimony submitted for the record of the Committee hearing on April 9, 2008, VA stated that development of web-based training to assist in the conduct of surveys was expected to be available by late summer 2008, and that additional training events are planned. The Committee believes these are important improvements in education on the LPS, but believes that additional measures may be required.

Subsection (k)(2) of section 101 of the Committee bill would add a new subparagraph (D) to section 7451(e)(4) of title 38. Under this proposed new subparagraph (D), which is intended to improve transparency in the LPS, a facility director would be required to publicize information on the methodology used in making an adjustment to rates of pay based on the LPS.

Subsection (k)(3) of section 101 of the Committee bill would further amend section 7451(e) by adding a new paragraph (6). Under current law, each facility director is required to report to the Secretary on wage-related staffing issues. Proposed new paragraph (6) would require such reports to be made available to any individual in a position included in such report, or, upon the authorization of such individual, to the representative of the labor organization representing that individual. Taken together, the Committee believes that the changes proposed by subsections (k)(2) and (3) of section 101 of the Committee bill will improve transparency of the LPS.

These amendments address concerns raised in testimony before the Committee on May 21, 2008, by Mr. Cox, and on April 9, 2008, by Ms. O'Meara. According to Mr. Cox, `greater employee access to pay survey data will add accountability to the locality pay process to ensure that surveys are done properly and that needed pay adjustments are made.'

The Committee is aware that in some facilities, access to LPS survey data is unnecessarily challenging for many employees. As Ms. O'Meara said in her testimony on April 9, 2008, `[l]ocality pay should be provided based on local labor market conditions, and be paid according to consistent rules, not on how hard employees fight for it or whether a particular manager decides to pay it.'

Concerns have been raised that the Committee bill places inordinate emphasis on the conduct of LPS surveys, rather than the use of BLS or third party data, which VA prefers. The Committee recognizes the value of BLS and third party data and does not intend that facility directors conduct their own surveys when such information is available. The Committee believes that, implemented effectively and according to statute, the LPS can effectively address geographically-related pay issues, and can strengthen recruitment and retention.

Subsec. 101(l)--Increased limitation on special pay for nurse executives.

Subsection 101(l) of the Committee bill would increase the authorized limit on special pay for nurse executives.

Background. Under current law, the Secretary may provide between $10,000 and $25,000 in special pay to nurse executives at each VA health care facility and at VA Central Office. The amount is determined based on the grade of the nurse executive position, the scope and complexity of the nurse executive position, the personal qualifications of the nurse executive, the characteristics of the health care facility concerned, the nature and number of specialty care units at the health care facility concerned, demonstrated difficulties in recruitment and retention of nurse executives at the health care facility concerned, and such other factors as the Secretary considers appropriate.

Given the limits on nurse pay, most nurse executives are already paid at or near the top of their grade. As such, VA lacks the ability to provide additional financial incentive to individuals who take on the increased responsibility of executive positions. Given the systemic shortage of nurses, as discussed with respect to sections 101(i) and 101(j) of the Committee bill, the Committee believes that additional financial incentives are warranted to attract highly qualified nurses to executive positions.

Committee Bill. Subsection (l) of section 101 of the Committee bill would amend section 7452(g)(2) of title 38 so as to increase the authorized limit on special pay for nurse executives from $25,000 to $100,000.

In testimony before the Committee on May 21, 2008, Mr. Blake expressed PVA's support for this provision of the Committee bill.

Subsec. 101(m)--Eligibility of part-time nurses for additional nurse pay.

Subsection (m) of section 101 of the Committee bill, which is derived from S. 2969, would expand eligibility for additional premium pay to part-time nurses.

Background. Additional pay for nurses is authorized by section 7453 of title 38. In general, nurses are eligible for overtime pay when they work over forty hours in a week or eight hours in a day. Further additional pay is mandated for nurses who work on weekends, at night, and on holidays. Other than overtime pay, eligibility for additional pay is limited to nurses working on specified tours of duty that meet the requirements of each type of additional pay. Those nurses not assigned to a specific tour are not eligible for the additional pay associated with such tour, even if their period of service includes hours which fall within the eligible time periods. This limit affects the pay of both full- and part-time nurses, as well as nurses who are on call and not assigned to tours of duty.

Based on testimony presented at Committee hearings, and information gathered during Committee oversight activity, as discussed with respect to subsections (i) and (j) of section 101 of the Committee bill, the Committee concludes that in many facilities VA is challenged to fill nurse staff positions and some nursing tours are difficult to cover. The Committee believes that the current eligibility criteria for additional pay are too restrictive to create effective financial incentives to encourage nurses to work those tours.

Further, the current additional pay statute creates unacceptable inequities between part-time and full-time nurses. In testimony before the Committee on April 9, 2008, Ms. O'Meara cited chronic problems with implementation of additional pay requirements. She urged `the Committee to take steps to ensure that premium pay is available to all RNs who perform services on weekends or off shifts, work overtime on a voluntary or mandatory basis, or work during on call duty.' By not providing part-time nurses additional pay on the same basis as full-time nurses, there is a disincentive for part-time and on-call nurses to serve during times of the day and week that are harder to staff. This is contrary to the intent of the additional pay authorities.

In addition, excluding part-time and on-call nurses from eligibility for additional pay, and denying additional pay for nurses not assigned to a specific eligible tour, creates further disparity between VA and non-VA compensation, and contributes to recruitment and retention challenges.

Committee Bill. Subsection (m) of section101 of the Committee bill would amend section 7453 of title 38 so as to expand eligibility for additional premium pay to part-time nurses.

An amendment to subsection (a) of section 7453 would provide that part-time nurses would be generally eligible for additional pay when they meet the criteria in other subsections of section 7453. Amendments to subsections (b)(concerning evening pay), (c) (concerning weekend pay), and (d) (concerning overtime pay), would, in multiple locations, replace `tour of duty' with `period of service.' These changes would make any service performed during evenings or weekends, or as overtime, eligible for additional pay.

It is the Committee's intent to change the basis for additional pay from the tour to the nurse's period of service and the timing of such service. This reflects the original Congressional intent that additional pay is intended to create incentives for nurses to work at times that would otherwise be difficult to staff. The changes proposed by the Committee bill would not eliminate the utility of established tours nor would they reduce additional pay for such tours. Rather, the changes would encourage a greater number of nurses to work during such times, and would equitably reward all nurses who do so.

In testimony before the Committee on May 21, 2008, Mr. Blake expressed the support of Paralyzed Veterans of America for the eligibility of part-time nurses to receive additional pay.

Subsection (m)(1)(D)(i) of section 101 of the Committee bill would address an inequity in eligibility for additional pay for overtime under section 7453(e) of title 38. Under current law, nurses who perform continuous service in excess of eight hours but on two different calendar days are not eligible for additional pay for overtime service. This section of the Committee bill would amend section 7453(e) to add service performed in excess of eight consecutive hours to the list of services eligible for additional overtime pay. In testimony before the Committee on April 9, 2008, Ms. O'Meara emphasized the urgency of this legislative change.

Subsec. 101(n)--Exemption of additional nurse positions from limitation on increase in rates of basic pay.

Subsection (n) of section 101 of the Committee bill, which is derived from S. 2969, would make additional health care occupations exempt from limitations on increases in rates of basic pay.

Background. Under current law, rates of basic pay for nurses and other health care providers may be increased under section 7455 of title 38. Under that section, the Secretary may determine that salary increases are necessary for the purposes of recruitment and retention, and to compete with pay for similar positions in non-Federal facilities in the same labor market.

Under subsection (c)(1) of section 7455, the amount of increase in the maximum pay rate generally is limited to two times the amount by which the original maximum exceeds the minimum, and the maximum rate as so increased may not exceed the pay rate of the Assistant Under Secretary for Health. Nurse anesthetists, pharmacists, and licensed physical therapists are exempted from this limit, based on the challenges VA faces in recruiting and retaining employees in these occupations, as discussed earlier in connection with subsections (g), (i), and (j) of section 101 of the Committee bill.

Committee Bill. Subsection (n) of section 101 of the Committee bill would amend section 7455(c)(1) of title 38 so as to make additional occupations exempt from limitations on increases in rates of basic pay. Specifically, this provision would add licensed practical nurses, licensed vocational nurses, and nursing positions otherwise covered by title 5, U.S.C., to the list of positions exempted from the limits imposed by section 7455(c)(1) of title 38. This provision, combined with subsection (i) of section 101 of the Committee bill, should ensure that VA has the pay flexibility to compete with other employers for qualified health care providers. In testimony before the Committee on April 9 and May 21, 2008, respectively, Ms. O'Meara and Mr. Cox emphasized the need for additional pay flexibility to strengthen VA's ability to compete with other employers.

Sec. 102. Limitations on overtime duty, weekend duty, and alternative work schedules for nurses.

Subsection 102 of the Committee bill, which is derived from S. 2969, would amend various provisions of title 38 so as to establish special rules for nurse staff overtime service, modify rules relating to leave during weekend duty, and change the underlying authority for alternative work schedules for nurses.

Subsec. 102(a)--Overtime duty.

Background. Under current law, the Secretary may require nurses to perform mandatory overtime in emergency situations. The Committee recognizes that this authority is essential to ensuring adequate staffing to provide patient care. However, based on oversight activities, and as discussed at the Committee hearing on April 9, 2008, it appears that, at some facilities, the use of emergency mandatory overtime is excessive and even abusive.

At the Committee hearing on April 9, 2008, Ms. O'Meara testified that `facility directors continue to invoke the emergency exception when staffing shortages are the result of easily anticipated scheduling and hiring problems.' At that same hearing, testimony on this issue was received from two VA medical center directors, Steven P. Kleinglass, of the Minneapolis VA Medical Center, and Sheila M. Cullen, of the San Francisco VA Medical Center. These two facilities illustrate two different approaches to the use of the emergency mandatory overtime authority. According to Mr. Kleinglass, in Minneapolis, mandatory overtime is used to respond to a number of situations, including unplanned leave, sick leave, emergency annual leave, absenteeism, and tardiness for duty by nursing staff. At the San Francisco VA Medical Center, on the other hand, mandatory overtime has been used only once in the past three years, an event implemented in cooperation with the local bargaining unit.

The Committee is concerned that VA lacks a clear definition of `emergency' for the purposes of implementing mandatory overtime and that VA facility directors appear to have unbridled discretion on the interpretation and implementation of this authority. Without a clear definition of what constitutes allowable situations, the use of emergency authority can lead to inconsistent implementation and abuse.

Research has highlighted the danger of excessive overtime service by nurses, as well as other health care providers. In the report `Keeping Patients Safe: Transforming the Work Environment of Nurses' (2004), the Institute of Medicine recommended that `to reduce error-producing fatigue, state regulatory bodies should prohibit nursing staff from providing patient care in any combination of scheduled shifts, mandatory overtime, or voluntary overtime in excess of 12 hours in any given 24-hour period and in excess of 60 hours per 7-day period.'

At least nine states have enacted legislation restricting the use of emergency mandatory overtime. In the interest of patient and employee safety and appropriate labor standards, these states limit the number of hours a nurse can be required to work, except in certain defined emergency situations.

Committee Bill. Subsection (a) of section 102 of the Committee bill would add a new section 7459 to subchapter IV of chapter 74 of title 38. This new section would limit nursing staff, including RNs, licensed practical or vocational nurses, nurse assistants appointed under title 38 or title 5, U.S.C., or any other nurse position designated by the Secretary, to no more than 40 hours of work per administrative work week (or 24 hours if such staff is covered by section 7456 of title 38), and not more than eight consecutive hours (or 12 hours if such staff is covered by sections 7456 or 7456A of title 38). Nursing staff may exceed these limits voluntarily or in emergency situations, as defined by the Committee bill.

The definition of `emergency circumstances' would be set out in subsection (c) of the proposed new section 7459. Under this subsection, the Secretary would be authorized to require mandatory overtime otherwise prohibited if the following conditions were met: (1) the work is a consequence of an emergency that could not have been reasonably anticipated; (2) the emergency is non-recurring and is not caused by or aggravated by the inattention of the Secretary or lack of reasonable contingency planning by the Secretary; (3) the Secretary has exhausted all good faith, reasonable attempts to obtain voluntary workers; (4) the nurse staff have critical skills and expertise that are required for the work; and (5) the work involves work for which the standard of care for a patient assignment requires continuity of care through completion of a case, treatment, or procedure. Nursing staff would not be required to work hours after the requirement for a direct role by the staff in responding to medical needs resulting from the emergency ends.

The concern has been raised by VA that the requirements of the Committee bill would unduly limit the Secretary's ability to ensure patient care and safety. The Committee agrees unequivocally that patient safety is of paramount concern. However, the Committee is concerned that undue reliance on mandatory overtime is not desirable and believes that, with reasonable contingency planning, including consultation with nurse staff, all VA facilities have the capacity to eliminate unnecessary use of emergency mandatory overtime. It is clear that many VA facilities already avoid unnecessary use of emergency mandatory overtime through effective planning for adequate nurse staffing.

Subsection (b)(2) of the proposed new section 7459 would prohibit discrimination or adverse personnel action against nursing staff if such staff were to refuse to work hours prohibited by such section. This protection has proven necessary in the many of the states which have legislatively limited mandatory overtime, including Connecticut, Maryland, Minnesota, New Jersey, and Washington.

In testimony before the Committee on May 21, 2008, Mr. Cox expressed AFGE's support for this provision of the Committee bill. He stated that these provisions `will establish a sensible and safe overtime policy that ensures that all nursing positions are equally protected.'

Subsec. 102(b)--Weekend duty.

Section 102(b) of the Committee bill, which is derived from S. 2969, would modify the calculation of leave for nurses working two 12-hour tours of duty during a weekend.

Background. Section 7456 of title 38 authorizes the Secretary to provide an alternate work schedule, commonly referred to as the Baylor Plan, to nurse employees. Under this plan, an employee who performs two regularly scheduled 12-hour tours of duty on a weekend is paid for a full forty hours. Under current law, an employee who is absent on approved sick leave or annual leave during such a regularly scheduled 12-hour tour of duty is charged for such leave at a rate of five hours of leave for three hours of absence.

The Baylor Plan is intended to be used when facilities are challenged to meet staffing needs on weekends. VA currently has no nurses employed under this plan.

Committee Bill. Section 102(b) of the Committee bill would strike section 7456(c) of title 38, to modify the calculation of leave for nurses working under the Baylor Plan. The change would specify that leave for such an employee would be charged at a rate of one to one.

The Committee expects that eliminating the current leave calculation will facilitate easier implementation of the Baylor Plan. The provision in the Committee bill was modified from an earlier version so as to address concerns raised by VA and to better achieve this goal.

Subsec. 102(c)--Alternative work schedules.

Subsection (c) of section 102 of the Committee bill, which is derived from S. 2969, would modify an existing alternative work schedule available to VA nurses.

Background. Section 7456A of title 38, U.S.C., authorizes the Secretary to provide alternative work schedules to RNs working for VA. These schedules, known as `36/40' schedules, allow VA nurses to work three regularly scheduled 12-hour tours of duty within a work week and to have that service considered for all purposes as a full 40-hour basic work week. These alternative work schedules are authorized `in order to obtain or retain the services of registered nurses.'

Alternative work schedules were authorized in December 2004 by the Department of Veterans Affairs Health Care Personnel Enhancement Act of 2004, Public Law 108-445. According to the Senate report accompanying the legislation that resulted in the new law, S. Rpt. 108-375, this new authority was a response to an August 2003 request by VA so as to `enhance its ability to recruit and retain high quality nurses.' In that report, the Committee noted that, based on a survey conducted in 2000 by the American Organization of Nurse Executives, inflexible scheduling was a major cause of nurse dissatisfaction. The original intent of Congress in authorizing alternative work schedules was that such schedules be widely available so as to enhance VA's ability to improve employee satisfaction and therefore be better able to recruit and retain nurses in competition with other employers.

Since the passage of Public Law 108-445, the implementation of 36/40 alternative work schedules has varied throughout the VA health care system. In testimony for the Committee hearing on April 9, 2008, VA indicated that it `encourages facility managers to use alternate work schedules for all eligible employees whenever feasible,' and noted that the use of these schedules `increases VA's visibility as the employer of choice.'

Some facilities, such as the San Francisco VA Medical Center, have made effective use of alternative schedules to reduce vacancy rates in nursing positions, and to improve nurse satisfaction. In testimony before the Committee on April 9, 2008, the San Francisco VA Medical Center Director, Ms. Cullen, stated that `most new hires are highly interested in an alternative work schedule. We believe that offering an alternative work schedule improves recruitment, retention and employee satisfaction.'

Mr. Kleinglass, the Director of the Minneapolis VAMC, in testimony before the Committee on April 9, 2008, noted that the use of alternative schedules at the Minneapolis VA Medical Center allows staff to `find balance between their work and home lives as they feel best suits their individual needs.'

Unfortunately, based on Committee oversight work, many VA facilities have failed to make 36/40 alternative work schedules widely available. While facility directors have discretion on the implementation of these schedules, Congress intended that their use be throughout the VA health care system. In testimony before the Committee on April 9, 2008, Ms. O'Meara stated:

As a result of delay and resistance by the VA at the national and local levels, [alternative work schedules] have failed to meet their potential for addressing VA nurse recruitment and retention problems. It seems as if the law was never passed.

Committee Bill. Subsection (c) of section 102 of the Committee bill would amend section 7456A of title 38, U.S.C., so as to modify the 36/40 alternative work schedule authorized by that section. Specifically, this section of the Committee bill would amend section 7456A(b)(1)(A) to modify the scheduling requirement for the 36/40 alternative work schedule. Currently, the 36/40 alternative work schedule is defined as `three regularly scheduled 12-hour tours of duty within a work week.' The Committee bill would redefine the schedule as six regularly scheduled 12-hour periods of service within an 80-hour pay period.

The intent of this provision is to facilitate easier implementation of the alternative work schedule. In testimony for the Committee hearing on May 21, 2008, VA noted that because a work week is defined as Sunday through Saturday, it is often difficult schedule three 12-hour tours in their entirety within one work week. VA expressed support for these provisions of the Committee bill, as they would provide greater flexibility to scheduling.

By providing greater flexibility in the scheduling of the alternative work schedule, the Committee intends to facilitate and encourage wider use of such schedules. Based on hearing testimony and oversight activities, the Committee believes that by unnecessarily limiting the use of the current 36/40 alternative work schedules, VA facilities forego a valuable recruitment and retention tool, and fail to keep pace with the health care industry.

Sec. 103. Improvements to certain educational assistance programs.

Section 103 of the Committee bill, which is derived from S. XXXX, would make amendments to two existing VA Education Assistance Programs and would provide the Secretary with new authority to make repayment of educational loans for certain health professionals.

Background. Chapter 76 of title 38, U.S.C., contains numerous authorities that are designed to enhance VA's ability to attract and retain health professions. Among these authorities are the Health Professional Scholarship Program, in Subchapter II and the Education Debt Reduction Program, in Subchapter VII.

The authorization for the programs needs to be extended in order to continue to give VA this ability, as the private sector has made recruiting health care professionals increasingly competitive. Title VII of Public Law 105-368 and Public Law 107-135 made amendments to these programs. VA currently awards Employee Incentive Scholarship Program (hereinafter `EISP') scholarships to qualifying and current employees to help VHA meet the health care staffing requirements set forth in Section 7401 of title 38, U.S.C., in which the difficulties surrounding recruitment and retention of VA health care employees is specifically addressed.

Committee Bill. Subsection (a) of section 103 of the Committee bill would amend section 7618 of title 38, U.S.C., so as to reinstate the Health Professionals Educational Assistance Program (HPEAP) through the end of 2013. The Committee believes that renewing HPEAP, which expired in 1988, will help reduce the nursing shortage in VA by enabling VA to provide scholarships to nursing personnel who, on completion of their education, will be obligated to work a year for every year of education, with a minimum obligation of two years, at a VA health care facility. This subsection would also expand eligibility for the scholarship program to all VA health personnel appointed to positions described under paragraphs (1) and (3) of section 7401 of title 38, which includes all title 38 health care employees as well as all hybrid occupations. The Committee expects that this expansion of those eligible for the scholarship program will be helpful in VA's efforts to recruit and retain employees in a number of difficult-to-fill health care occupations.

Subsection (b) of section 103 would amend three provisions in subchapter VII of chapter 76, relating to VA's Education Debt Reduction Program.

Paragraph (1) of subsection (b) would amend section 7681(a)(2) so as to add retention, along with recruitment, as a purpose of the debt reduction program.

Paragraph (2) would amend subsection (a)(1) of section 7682 and would strike subsection (c) of that section so as to make the debt reduction program available to `an' employee, not just to a `recently appointed' employee as in current law. The `recently appointed' requirement limits eligibility to employees who have been appointed within six months. VA's experience has been that this is not a sufficient period and that, in some cases, it takes more than six months for employees to become settled in their new jobs and to even become aware of this program.

Paragraph (3) would amend subsection (d) of section 7683 to increase the maximum amounts of education debt that can be forgiven, both overall and in the fourth and fifth years of participation in the debt reduction program, so as to raise the overall amount from $44,000 to $70,000, and the maximum amount in the fourth and fifth years from $10,000 to $12,000.

Subsection (c) of section 103 would authorize the Secretary, in consultation with the Secretary of Health and Human Services, to use the authorities in section 487E of the Public Health Service Loan Repayment Program for the repayment of educational loans of health professionals from disadvantaged backgrounds in order to secure clinical research expertise in VA from such individuals. This loan repayment program is currently not available to federal employees other than those working for the National Institutes of Health. By extending this authority to VA, clinicians with medical specialization and research interests may be more likely to join VHA.

Sec. 104. Standards for appointment and practice of physicians in Department of Veterans Affairs medical facilities.

Section 104, which is derived from S. 2377, would establish a new section in title 38, U.S.C., which would set out procedures for appointing new physicians in VA, and the requisite qualifications of such physicians.

Background. Current section 7402 of title 38, U.S.C., sets forth the requirements that must be met in order for a person to be appointed as a physician with VA. Included in these requirements are that the applicant hold the degree of doctor of medicine, or doctor of osteopathy, from a university approved by the Secretary; that the applicant has completed an internship approved by the Secretary; and that the applicant be licensed to practice medicine, surgery, or osteopathy in a State.

Under subsection (f) of section 7402, any applicant who has or has had multiple licenses or certifications and has had one or more of them suspended, revoked, or surrendered for cause, is subject to employment restrictions. All applicants, with certain exceptions, must possess basic English proficiency.

VA also requires extensive disclosures from applicants, including the status of their credentials, and is permitted to deny appointment or terminate employment if that information is not disclosed. This information must be resubmitted every two years. A VA policy that took effect on January 1, 2008, requires applicants to submit an authorization to their State licensing boards to permit those boards to release records to VA. According to guidance from the Deputy Under Secretary for Health for Operations and Management dated October 10, 2007, VA Service Chiefs are required to review and document any health care practitioner's record that has been flagged. Additionally, the guidance requires Veterans Integrated Service Network (VISN) Chief Medical Officers (CMO) to review any record in the National Practitioners Data Bank relating to a practitioner that shows three or more medical malpractice payments, a single malpractice payment of $550,000 or more, or two malpractice payments totaling $1,000,000 or more. The VISN CMO is then required to review the relevant material and determine if the appointment is appropriate. A similar review occurs for any search returning negative action regarding an individual's credentials or licensing.

Current law does not require physicians to be board certified in the area in which they will practice in order to be eligible for employment with VA. VA permits facility directors and chiefs of staff to determine that an applicant is qualified based on other factors. VA believes its current requirements are in keeping with medical standards.

Physicians elsewhere in Federal service are not required to be licensed in the State in which they practice, but simply to be licensed in any State. VA makes use of telemedicine, and exchanges physicians or allows physicians to collaborate with others in the Federal system in different States. This also occurs during certain emergency situations. Additionally, some States have licensing procedures that take more than one year to complete.

Committee Bill. Section 104 of the Committee bill would establish a new section in title 38, U.S.C.,--Section 7402A. Appointment and practice of physicians in VA medical facilities--which would set forth the procedures for appointing new physicians in VA, and the requisite or desired qualifications to practice as a VA physician. This provision would take effect immediately upon enactment, except for subsection (f) as that section pertains to physicians already employed by VA, which would go into effect 60 days after enactment, and subsection (g), relating to performance contracts with VISN directors, which would go into effect upon the start of the first cycle, beginning after the date of enactment, of performance contracts for VISN directors.

Subsection (a) of the proposed new section would require the Secretary, through the USH, to develop and promulgate minimum standards a physician must meet in order to be appointed to that position in the VHA, or to be permitted to practice in the VA medical facilities. The standards developed would be required to include the requirements outlined in the new section 7402A.

Subsection (b) of the proposed new section would require any individual seeking to be appointed as a physician within the VHA to provide the following information: a full and complete explanation of any lawsuit for medical malpractice or negligence that is pending or was brought against the applicant; any settlements agreed to as a result of a lawsuit for malpractice or negligence; and any investigation or disciplinary action against the applicant that relates to the applicant's work as a physician. The applicant must also provide authorization to the licensing board of any state where the applicant holds or has ever held a license to practice medicine, to disclose to the Secretary any records pertaining to: any lawsuit for malpractice or negligence brought against the applicant, and the details any settlements agreed to as a result; any court or administrative agency's judgment against the applicant; any disciplinary action brought against the applicant by any State body or administrative agency; any change in the status of the applicant's license to practice medicine, whether voluntary or involuntary; any open investigation of, or outstanding allegation against, the applicant; and any written notification from the State to the applicant pertaining to the potential termination of the applicant's license.

Subsection (c) of the proposed new section would require any physician appointed to practice in the VHA, after the enactment of the Committee bill, to disclose to the Secretary, within 30 days of an occurrence: a judgment against the physician for medical malpractice or negligence; a payment made as part of a settlement for a lawsuit or action previously disclosed prior to appointment; or any disposition or change in status of any issue disclosed prior to appointment. Additionally, this subsection would require any physician practicing in VHA at the time of the enactment of the Committee bill to provide authorization, within 60 days after the date of enactment, identical to the authorization required for applicants, to the State licensing board of any State where the physician has held, or currently holds, a license to practice medicine. A physician currently practicing in the VHA would be required, as a condition of employment, to agree to disclose, within 30 days of occurrence, any future judgment against the physician or payment as part of a settlement arising from a lawsuit alleging malpractice or negligence, or the disposition or change in status of any matter disclosed pursuant to the authorization for disclosure the physician would be required to give to a State licensing board.

Subsection (d) of the proposed new section would require the director of the VISN in which an applicant seeks employment as a VA physician to conduct an investigation into the information disclosed by the applicant as required by new subsection (b). The appropriate VISN director also would be required to perform a similar investigation of any material disclosed by a VA physician employed as of the date of enactment of the Committee bill, or a physician appointed after that date who discloses information while employed by VA, as required by new subsection (c). The results of all such investigations would be required to be fully documented.

Subsection (e) of the proposed new section would require any applicant seeking to be employed as a VA physician to receive the approval of the appropriate VISN director. If the applicant has disclosed information as required by new subsection (b), the VISN director, if the director chooses to approve the applicant, would be required to certify in writing that the investigation of each issue required by new subsection (d) was completed, and the director would be required to provide a written explanation as to why any identified issue did not disqualify the applicant.

Subsection (f) of the proposed new section would require each VA medical facility that employs physicians who practice at that facility to enroll each physician in the Proactive Disclosure Service of the National Practitioners Database.

Subsection (g) of the proposed new section would require the Secretary to include in each performance contract with a VISN director, a provision that encourages the director to hire physicians who are board certified or eligible for such certification in the field in which they will be practicing when employed by VA. The Secretary would be authorized to determine the nature of this provision in the performance contracts.

The Committee believes that the requirements that would be put in place by the proposed new section 7402A are necessary to strengthen qualification standards for hiring physicians at VA and for monitoring their performance once they are working for VA. Despite the measures VA has in place regarding review of qualifications, history, and credentials, there have been incidents of physicians practicing in VA with suspended licenses and other problems with their qualifications. One of the most recent incidents of such a situation occurred at the Marion, Illinois, VA Medical Center, and that lack of appropriate review resulted in several patient deaths. The fact that VA's existing policy failed to prevent this result illustrates that additional measures to prevent under-qualified physicians from practicing medicine are needed and that it is justified to give VA's hiring practices the force of law.

TITLE II--HEALTH CARE MATTERS

Many provisions in this title are taken from S. 2984 which, as noted earlier, is a bill that was introduced at the request of the Administration. Chairman Akaka introduced this legislation, by request. This measure was included on the agenda for the Committee's May 21, 2008, hearing on pending health care legislation, and based on testimony at that hearing, many of the provisions from that bill are included in the Committee bill, as discussed below.

Sec. 201. Repeal of sunset on inclusion of non-institutional extended care services in definition of medical services.

Section 201, which is derived from S. 2984, would repeal the existing, temporary authority for VA to provide non-institutional extended care services and, instead, include such services as part of `medical services' furnished by VA to veterans enrolled for VA care.

Background. The initial authority for VA to provide comprehensive access to alternatives to nursing home care was included in Public Law 106-117, enacted in 1999. The Congress anticipated that this authority would be helpful in giving veterans greater options instead of relying solely on traditional nursing home care. Since 1999, funding for non-institutional care for veterans has steadily increased, evidence that it is meeting the needs of an increasing number of veterans.

Committee Bill. The Committee bill would permanently include non-institutional extended care services as part of the definition of medical services under chapter 17 of title 38, U.S.C., by repealing section 1701(10), and amending section 1701(6).

The Committee believes making non-institutional care services a permanent feature of VA's medical benefits package is necessary. The health care services provided in settings that are not exclusively nursing homes are now considered to be appropriate and standard in providing for the long-term care needs of veterans.

Sec. 202. Extensions of certain authorities.

Section 202, derived from S. 2984, would extend two expiring authorities: (1) VA's obligation to furnish nursing home care to certain veterans, and (2) VA's responsibility to conduct audits of VA payments to outside providers in connection with care for veterans.

Background. In Public Law 106-117, Congress initially required that veterans requiring nursing home care for a service-connected condition, or a veteran rated 70 percent or greater, have mandatory eligibility for such care. The initial obligation expired on December 31, 2003. Later, the authority was extended for an additional five years.

Committee Bill. Subsection (a) of section 202 of the Committee bill would extend, through December 31, 2013, VA's obligation to provide nursing home care to veterans who have a service-connected disability rated at 70 percent or greater, and to veterans who need nursing home care for their service-connected disabilities.

This five-year extension would enable VA to continue to provide nursing home care and will prevent any break in needed nursing home care services.

Background. The authority for an audit recovery program was established in Public Law 108-422, enacted in 2004. This program identifies overpayments resulting from processing or billing errors as well as fraudulent charges. Recoveries made under the program are available without fiscal year limitation and are used to provide medical care to veterans and beneficiaries in the year in which they are recovered. Currently, this authority is set to terminate on September 30, 2008.

Committee Bill. Section 202(b) of the Committee bill would extend VA's mandate in section 1703(d), of title 38, U.S.C., to conduct, through a contractual arrangement, audits of payments made by VA for care and services furnished to veterans under fee basis arrangements and other medical services contracts.

The Committee believes that the operation of a recovery audit program is consistent with good business practice and, indeed, it has proven advantageous to VA. Since 2001, VA has recouped $63,000,000 in all covered program areas, and VA projects it will recover an additional $24,000,000 if the authority is extended through 2013. An ancillary benefit of this program has been the related collection of extensive quality information on VA's claims processing capabilities. VA has used this vital information in developing and/or improving staff training, policies, and requests for and use of new technology.

Sec. 203. Permanent authority for provision of hospital care, medical services, and nursing home care to veterans who participated in certain chemical and biological testing conducted by the Department of Defense.

Section 203, which is derived from S. 2984, would make permanent VA's authority to furnish care to veterans who participated in certain chemical and biological tests conducted by the Department of Defense (DOD).

Background. According to DOD, Project SHAD was an element of a project called Project 112, which was a chemical and biological warfare test program conducted at the Deseret Test Center. DOD conducted Project 112 tests between 1962 and 1973. Project SHAD itself was a series of tests apparently designed to determine potential vulnerabilities of U.S. warships to attacks with chemical or biological warfare agents. Other Project 112 tests involved similar experiments conducted on land rather than aboard ships.

VA first learned of Project SHAD when a veteran filed a claim for service-connection for disabilities that he felt were related to his participation in those tests.

Public Law 108-170, enacted in 2003, authorized that veterans who participated in the tests receive VA care at no cost for any condition or illness that is not associated with some cause other than their participation in the testing. While that care is exempt from any otherwise applicable copayment requirements, veterans may be subject to copayments for care provided for conditions that the Secretary determines resulted from causes other than their participation in these tests. The initial authority to provide health care services to Project SHAD participants expired after December 31, 2005. The current authority expires on December 31, 2008.

Committee Bill. Section 203 of the Committee bill would remove the sunset date on the existing authority, thereby making access to VA care for these veterans permanent.

The Committee believes that the veterans who participated in this testing deserve to receive VA care and treatment at no cost to the veteran for any condition that can not be attributed to some cause other than the testing.

Sec. 204. Repeal of certain annual reporting requirements.

Section 204, which is derived from S. 2984, would repeal the requirement for VA to submit to Congress two annual reports, one relating to pay adjustments for registered nurses, and one relating to VA's long-range health planning.

Background. Public Law 101-366, The Department of Veterans Affairs Nurse Pay Act of 1990, established a reporting requirement relating to pay adjustments for registered nurses because, at that time, annual General Schedule (GS) comparability increases were extended to VA nurses at the discretion of the facility Director. However, with the subsequent enactment of Public Law 106-419, the Veterans Benefits and Health Care Improvement Act of 2000, GS comparability increases must be given to VA nurses and other health care personnel described in section 7451.

With respect to VA's long-range health care planning, VA's annual budget documents contain information on VHA's tactical and strategic goals, performance measures, and supporting activities; current and anticipated methods for serving VA's special populations; and other priorities, resource requirements and distribution methodologies. With the advent of VA's 5-Year Strategic Plan in 2004, VA's budget submission also includes the top 20 priorities for medical construction projects.

Committee Bill. Subsection (a) of section 204 of the Committee bill would repeal the requirement to report annually on any pay adjustments made to the basic pay of VA nurses and other health care personnel described in section 7451 of title 38, U.S.C. In light of the fact that covered staff receive, at a minimum, the annual increases in pay provided under the GS schedule, the Committee views this annual report as unnecessary.

Subsection (b) of this section of the Committee bill would repeal the requirement for the Secretary to annually report on VA's long-range health planning, including operation and construction plans for medical facilities. The Committee is satisfied that this report contains information that is already submitted in other reports and plans, particularly those prepared annually in connection with VA's budget request.

Sec. 205. Modifications to annual Gulf War research report.

Section 205, which is derived from S. 2984, would make changes to VA's annual report on Gulf War research.

Background. Under current law, section 707 of the Persian Gulf War Veterans' Health Status Act, Public Law 102-585, the Executive Branch, through a designated head of an appropriate department or agency, is required to report to the Committees on Veterans' Affairs of the Senate and the House of Representatives on the status and results of all research undertaken in the area of Gulf War Illnesses and the research priorities identified during the previous year. Since the requirement was enacted in 1992, the Secretary has been the official responsible for compiling and submitting this report. This report is due by March 1 of each year. Under current law, this report is a continuing obligation.

Committee Bill. Section 205 of the Committee bill would change the due date of this annual report to Congress on the research on the health effects of service during the Persian Gulf War from March 1 to July 1 of each year, and also establish a sunset date for this reporting requirement of July 2013.

VA has testified that it is difficult if not impossible to submit the report by the current March 1 statutory deadline and it is the Committee's view that a July 1 deadline is more attainable. Imposition of a sunset date is intended to afford Congress sufficient opportunity to assess, in five year's time, whether there exists a continued need for this formal reporting requirement.

Sec. 206. Payment for care furnished to CHAMPVA beneficiaries.

Section 206, which is derived from S. 2984, would clarify the status of payments made by VA to health care providers on behalf of beneficiaries under the CHAMPVA program.

Background. CHAMPVA is a health care program in which VA shares the cost of covered health care services and supplies with eligible beneficiaries. The program is administered by Health Administration Center. To be eligible for CHAMPVA, a person must be in one of these categories: (1) the spouse or child of a veteran who has been rated permanently and totally disabled for a service-connected disability by VA; or (2) the surviving spouse or child of a veteran who died from a VA-rated service connected disability; or (3) the surviving spouse or child of a veteran who was at the time death rated permanently and totally disabled from a service connected disability; or (4) the surviving spouse or child of a service member who died in the line of duty of a cause other than willful misconduct (in most of these cases, these family members are eligible for DOD's health care program known as TRICARE).

While VA's regulations for the CHAMPVA program, located within 38 CFR (Code of Federal Regulations) section 17.55, provide for VA payments to providers under the CHAMPVA program to constitute payment in full, VA's enforcement of this regulation has been hampered by the lack of statutory authority. VA has indicated that some providers still attempt to bill beneficiaries for the difference between the billed amount and the amount payable under the CHAMPVA program.

Committee Bill. Section 206 of the Committee bill would provide that payments made by the Secretary to providers who furnish medical care to a beneficiary covered under CHAMPVA shall constitute payment in full and thereby extinguish the beneficiary's liability to the provider for that care.

Sec. 207. Payor provisions for care furnished to certain children of Vietnam veterans.

Section 207, which is derived from S. 2984, would amend two sections of title 38, U.S.C., relating to care furnished to certain children of Vietnam veterans, so as to clarify payment procedures for such care.

Background. Public Law 104-204, enacted in 1996, authorized VA to furnish health care--either directly or through contracts--to certain children of Vietnam veterans. The purpose was to provide for the special needs of certain children of Vietnam veterans who were born with the birth defect spina bifida and, in the case of children of women Vietnam veterans, other covered birth defects, possibly as the result of the exposure of one or both parents to herbicides during active service in the Republic of Vietnam during the Vietnam era. In order to carry out this health care program, VA developed a fee for service (indemnity plan) program that provides reimbursement for medical services and supplies related to spina bifida and conditions associated with spina bifida. Currently, providers must accept VA's payment as payment in full for the services provided, but because VA's payments are based on the CHAMPVA fee payment schedule, and not actual charges, many providers no longer agree to participate in these treatment programs.

Committee Bill. Subsection (a) of section 207 of the Committee bill would amend section 1803 of title 38, U.S.C., to add a new subsection which would designate VA as the primary payer for care or services furnished to children of Vietnam veterans suffering from spina bifida or other disability associated with spina bifida. This new subsection would expressly permit the provider (or his agent) who furnished such care to seek payment from a third party payer, if the beneficiary has a health care plan that would otherwise be responsible for payment for the care and services, for the difference between the amount billed and the amount paid by the Secretary. The new subsection would prohibit the health care provider (or the provider's agent) from imposing any additional charges on the beneficiary who received the care, or the beneficiary's family, for any service or item for which the Secretary has made payment under this section. It would limit the total amount a provider could receive for furnishing care or services under this section from all payer sources to the amount billed to VA. Finally, the new subsection would require VA, upon request, to provide a third party with information concerning claims under this section.

Subsection (b) of section 207 of the Committee bill would amend section 1813 of title 38, to enact the same provisions as detailed in subsection (a) above, but, in the case of this subsection, for children of women Vietnam veterans with other specified birth defects.

It is the Committee's intention that because providers would be permitted to bill beneficiaries' health insurance for amounts not paid by VA, this would lead to potentially higher reimbursements for providers. The Committee is hopeful that this would encourage more providers to participate with VA under these programs.

Sec. 208. Disclosures from certain medical records.

Section 208, which is derived from S. 2984, would permit VA health care practitioners to disclose the relevant portions of certain VA records to surrogate decision makers who are authorized to make decisions on behalf of patients who lack decision-making capacity.

Background. Section 7332 of title 38, U.S.C., authorizes VA to disclose treatment information for drug abuse, alcoholism and alcohol abuse, HIV infection, and sickle cell anemia only for certain purposes which are set out in the section. Disclosure to surrogate decision makers for the purpose of making informed decisions regarding the treatment of patients who lack decision-making capacity, but to whom the patients had not specifically authorized release of section 7332-protected information prior to losing decision-making capacity, is not one of the specified purposes.

Committee Bill. Section 208 of the Committee bill would amend section 7332 of title 38, U.S.C., to permit VA health care practitioners to disclose the relevant portions of VA records of the treatment of drug abuse, alcoholism and alcohol abuse, HIV infection, and sickle cell anemia to surrogate decision makers who are authorized to make decisions on behalf of patients who lack decision-making capacity, but to whom the patient has not specifically authorized release of section 7332-protected information prior to losing decision-making capacity. This change would allow for such disclosure only under the circumstances where the information is clinically relevant to decision that the surrogate is being asked to make. The term `representative' means the individual, organization, or other body authorized under section 7331 of title 38 and the regulations implementing that provision, to give informed consent on behalf of a patient who lacks decision-making capacity.

Sec. 209. Disclosure to Secretary of health plan contract information and social security number of certain veterans receiving care.

Section 209, which is derived from S. 2984, would add a section to chapter 17 of title 38, U.S.C., to authorize VA to require that those seeking or receiving VA health care provide certain information in connection with such care.

Background. Although VA has authority under section 1729 of title 38, U.S.C., to recover from health insurance carriers the reasonable charges for treatment of a veteran's nonservice-connected disabilities, there is no express statutory authority that requires an applicant for, or recipient of, VA medical care to provide information concerning health insurance coverage.

Under Section 7 of the Privacy Act, VA cannot deny to an individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his or her social security number. However, this prohibition does not apply with respect to any disclosure that is required by Federal statute.

Committee Bill. Section 209 would amend title 38 by adding section 1709 which would authorize the Secretary to require that applicant for, and recipients of, VA medical care and services provide their health plan contract information and social security numbers to the Secretary upon request.

Subsection (a) would require specific information on any health plan contract which provides coverage. Information that may be required regarding health plan coverage would include the name of the health plan contract, the name of the veteran's spouse, if coverage is under the spouse's health plan contract, the plan number, and the plan's group code. This authority will ensure that VA is able to obtain contract information for a particular health plan.

Subsection (b) provides that the Secretary may require applicants for, or recipients of, VA medical care or services to provide their social security numbers and those of dependents or VA beneficiaries upon whom the applicant or the recipient's eligibility is based. This subsection, in conjunction with subsection (c), discussed below, affords the Secretary the statutory authority to require applicants for, and recipients of, VA health care benefits to disclose social security numbers.

Subsection (c) provides that the Secretary would be authorized to deny the application of, or terminate the provision of medical care or services to individuals who fail to provide information requested pursuant to subsection (b). The subsection further provides that the Secretary may reconsider the application for or reinstate the provision of care or services once the information requested pursuant to subsection (b) has been provided.

Subsection (d) provides that this section may not be construed as authority to deny medical care and treatment to an individual in a medical emergency. If a medical emergency exists, VA will not be permitted to deny eligibility for medical care or services should the applicant or recipient fail to provide health plan contract information or social security numbers.

Because eligibility for medical care and services is conditioned on the applicant or recipient's provision of health plan contract information or social security numbers, VA believes that the applicant or recipient will have an incentive to provide the requested information. VHA must match veterans' income data with the Internal Revenue Services and the Social Security Administration to carry out its income verification responsibility under section 5317 of title 38, U.S.C. Such matching requires the use of verified social security numbers. According to VHA, officials have obtained verified social security numbers for approximately 97 percent of its enrolled veterans and 86 percent of the spouses for whom income is reported. While this suggests that the voluntary reporting process is working, VHA estimates that they still have more than 1,000,000 veterans enrolled for whom no social security number has been provided. Further, VHA argues that they have been unable to match income for more than 675,000 spouses because the social security numbers have not been provided.

The Committee expects VA to provide a high degree of confidentiality for beneficiaries' health plan information and social security numbers.

Sec. 210. Enhancement of quality assurance.

Section 210 of the Committee bill, which is derived from S. 2377, would require actions to enhance VA's quality assurance efforts. Specifically, this section of the Committee bill would require that: (1) the USH (a) designate a physician to serve as VHA's principal quality assurance officer and (b) other physicians to serve as quality assurance officers for each VISN; (2) the director of each VHA facility appoint a quality assurance officer for each facility; (3) the USH establish mechanisms to allow VHA employees to submit confidential reports on matters related to health care quality; and (4) the Secretary undertake a comprehensive review of all VA quality and patient safety policies.

Background. Under current law, section 7311 of title 38, U.S.C., VA operates a quality assurance system to monitor and evaluate the quality of VA health care. That system is headed by the Chief Quality and Performance Management Officer of the National Quality and Performance Office. While a number of other entities have a role in VA quality assurance efforts, including the Office of the Inspector General, the Office of the Medical Inspector, the National Patient Safety Office, and the Office of Compliance and Business Integrity, none has a permanent oversight capacity at every VA medical center. The VA quality assurance and monitoring program, including the National Surgical Quality Improvement Program (NSQIP), have proven effective in certain situations. However, in a report titled `Quality of Care Issues, VA Medical Center, Marion, Illinois' (January 2008), the VA Office of the Inspector General (hereinafter, `OIG') found that the quality assurance process was ineffective in many respects. The peer review process, the tracking of performance data on providers, and mortality assessments as carried out at the Marion, Illinois, VA Medical Center were all found to be deficient. The OIG concluded that:

[T]he oversight reporting structure for quality management reviews at the Marion VAMC was fragmented and inconsistent, making it extremely difficult to determine the extent of oversight of patient quality or corrective actions taken to improve patient care. This occurred partially because quality management responsibilities were split between multiple groups at the facility with little or no management oversight.

The OIG further concluded that the Marion VAMC Surgery Service leadership was ineffective, and that communication among the nurse responsible for NSQIP at the facility, surgical providers, and the Chief of Surgery was highly ineffective, allowing multiple quality management processes to fail.

Based on information related to the Marion, IL, experience and other oversight activity, the Committee believes that VA's internal processes can ensure quality in some circumstances, but that significant improvements are necessary. Continuous and attentive monitoring is not fully in place, and facility leadership across the VA system must prioritize quality assurance.

Committee Bill. Section 210 of the Committee bill would add a new section 7311A to chapter 73 of title 38, U.S.C. This new section would require the USH to appoint a National Quality Assurance Officer, reporting directly to the Under Secretary, who would develop requirements and standards for a national quality assurance program, and prescribe regulations for its implementation.

The Committee believes that such a position would be helpful in order to ensure the thorough and uniform discharge of quality assurance requirements under such programs and activities throughout VA facilities. The USH would also be required to designate quality assurance officers for each VISN. Such officers would direct the quality assurance effort of each network and coordinate, monitor, and oversee the quality assurance programs and activities of the medical facilities in the Network.

Additionally, section 210 of the Committee bill would require each VA medical center Director to appoint a physician, from that facility, to be the quality assurance officer for that facility. The Director would be required to ensure that other clinical or administrative duties of the person appointed as the quality assurance officer are reduced so as to not interfere with the person's quality assurance duties. The quality assurance officer would report to the director of the facility and to the quality assurance officer of the VISN of which that facility is a part.

Section 210 would also require the USH to put in place a system through which VHA employees might submit reports, on a confidential basis, on quality of care matters to the quality assurance officer at the employee's facility. Such a system would provide a safe channel through which employees might report their concerns about care being furnished at the facility. Such a system should make it possible for any such reports to receive appropriate attention and review.

This section of the Committee bill also would require the Secretary to submit a report to Congress on all policies and protocols of VA that pertain to maintenance of health care quality and protection of patient safety at VA medical facilities. This report would be required to include an assessment of NSQIP, with special emphasis on the effectiveness of the design and structure of the program's data collection, evaluation, and assessment structure, and the sufficiency of resources allocated to that program. In testimony before the Committee on May 21, 2008, Dr. Gerald Cross, Principal Deputy Under Secretary for Health, expressed VA's support for the provisions of this section of the Committee bill that would require a comprehensive review and report on health care quality and patient safety policies across the VA health care system.

Sec. 211. Reports on improvements to Department health care quality assurance.

Section 211, which is derived from S. 2377, would require the Secretary to report on VA efforts to implement the provisions of the Committee bill concerning quality assurance.

Background. There are currently no regular requirements for VA to report to Congress on VHA quality assurance efforts. This lack of effective reporting mechanisms can contribute to ineffective quality oversight. While the Inspector General performs valuable oversight of individual facilities and specific events, the Committee believes a comprehensive annual reporting requirement would more effectively ensure oversight and accountability by the Committee and the Congress.

Committee Bill. Section 211 would require the Secretary to submit a report to the Committees on Veterans' Affairs and Appropriations of the Senate and the Committees on Veterans' Affairs and Appropriations of the House of Representatives by December 15, 2009, and annually thereafter, through 2012. This report would detail VA efforts, over the preceding fiscal year, to implement the provisions of sections 104 (relating to standards for appointment and practice of VHA physicians) and 210 (relating to quality assurance officers) of the Committee bill, along with any recommendations the Secretary may have to improve the implementation of these sections or to otherwise improve the quality of VA health care. The Committee expects that this reporting requirement will lead to increased oversight of VA's efforts to improve quality assurance efforts and activities.

Sec. 212. Pilot program on training and certification for family caregiver personal care attendants for veterans and members of the Armed Forces with TBI.

Section 212 of the Committee bill, which is derived from S. 2921, would require the Secretary, in collaboration with the Secretary of Defense, to carry out a pilot program to evaluate, over a three-year period, the provision of health care training, certification and compensation to family members of veterans and members of the Armed Forces with TBI, so as to allow family members to function as personal care attendants.

Background. Currently, VA operates a Personal Care Attendant certification program at the San Diego, California, VA Medical Center for patients with spinal cord injury. According to the VHA directives, family members can be personal care providers as long as they are certified by a Spinal Cord Injury Center. Once certified, VA can compensate these family members for the services they provide at a rate not to exceed the hourly rate paid to VA nursing assistants.

There have been two prior attempts to address the issue of training family caregivers for veterans with TBI. Section 744 of Public Law 109-364, the John Warner National Defense Authorization Act of 2007 (hereinafter, `NDAA 2007'), required the establishment of a panel to develop training curricula for family members on caregiving techniques for TBI patients. Section 214 of Public Law 109-461, The Veterans Benefits, Health Care, and Information Technology Act of 2006, mandated a VA pilot program to improve caregiver assistance services, including training and certification.

Committee Bill. Section 212 of the Committee bill would require the Secretary, in collaboration with the Secretary of Defense, to carry out a 3-year pilot program in three VA medical facilities and, if the Secretaries determine it is appropriate, one DOD medical facility. In selecting locations, the Secretary would be required to attempt to locate the pilot program at VA Tier I polytrauma centers. VA currently operates four such centers at the Minneapolis, Tampa, Richmond, and Palo Alto VA medical centers. A fifth center is slated to open at the San Antonio VA Medical Center in the near future.

The Secretary would be required to develop a training program for those who would serve as personal care attendants under the pilot program. This training would be required to incorporate standards of certification programs of national brain injury care specialist organizations as well as best practices of caregiving organizations, such as the National Family Caregivers Association. This training program would be required to draw on the training curricula that were developed under NDAA 2007.

The Secretary would be responsible for determining whether a family member would be eligible for participation in the pilot program, based upon the needs of the patient, as determined by the patient's physician. A family caregiver certified as a personal care attendant under this pilot program would be eligible to be paid by VA for the care the personal care attendant provides.

The Secretary or the Secretary of Defense would be required to pay any costs of training family members of veterans or members of the armed services, respectively, to be personal care attendants. Under the pilot program, the Secretary would be allowed to provide information to a properly certified personal care attendant, including an assessme