Apr112013
Hearing Transcript on Legislative Hearing on H.R. 4089, H.R. 4463, H.R. 5888, H.R. 6114 and H.R. 6122.
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LEGISLATIVE HEARING ON H.R. 4089, H.R. 4463, H.R. 5888, H.R. 6114 AND H.R. 6122
HEARING BEFORE THE SUBCOMMITTEE ON HEALTH OF THE COMMITTEE ON VETERANS' AFFAIRS U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION JUNE 5, 2008 SERIAL No. 110-90 Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE For sale by the Superintendent of Documents, U.S. Government Printing Office
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CORRINE BROWN, Florida |
STEVE BUYER, Indiana, Ranking |
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Malcom A. Shorter, Staff Director SUBCOMMITTEE ON HEALTH
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records of the Committee on Veterans' Affairs are also published in electronic form. The printed hearing record remains the official version. Because electronic submissions are used to prepare both printed and electronic versions of the hearing record, the process of converting between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process is further refined. |
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C O N T E N T S
June 5, 2008
Legislative Hearing on H.R. 4089, H.R. 4463, H.R. 5888, H.R. 6114 and H.R. 6122
OPENING STATEMENTS
Chairman Michael Michaud
Prepared statement of Chairman Michaud
Hon. Jeff Miller, Ranking Republican Member, prepared statement of
WITNESSES
U.S. Department of Veterans Affairs, Gerald M. Cross, M.D., FAAFP, Principal Deputy Under Secretary for Health, Veterans Health Administration
Prepared statement of Dr. Cross
Doyle, Hon. Michael F., a Representative in Congress from the State of Pennsylvania
Prepared statement of Congressman Doyle
Filner, Hon. Bob, Chairman, Committee on Veterans' Affairs, and a Representative in Congress from the State of California
Prepared statement of Congressman Filner
Walz, Hon. Timothy J., a Representative in Congress from the State of Minnesota
Prepared statement of Congressman Walz
SUBMISSIONS FOR THE RECORD
American Federation of Government Employees, AFL-CIO, statement
American Legion, Joseph L. Wilson, Deputy Director, Veterans Affairs and Rehabilitation Commission, statement
American Veterans (AMVETS), Raymond C. Kelley, National Legislative Director, statement
Costello, Hon. Jerry F., a Representative in Congress from the State of Illinois, statement
Disabled American Veterans, Joy J. Ilem, Assistant National Legislative Director, statement
National Association of Government Employees, SEIU/NAGE Local 5000, David J. Holway, National President, statement
National Federation of Federal Employees, Patricia Lasala, First Vice President, statement
Pain Care Coalition, Richard Rosenquist, M.D., Chair, letter and attachment
Paralyzed Veterans of America, statement
Veterans of Foreign Wars of the United States, Dennis M. Cullinan, Director, National Legislative Service, statement
MATERIAL SUBMITTED FOR THE RECORD
Follow-up Information and Post-Hearing Questions and Responses for the Record from VA:
LEGISLATIVE HEARING ON H.R. 4089, H.R. 4463, H.R. 5888, H.R. 6114 AND H.R. 6122
Thursday, June 5, 2008
U. S. House of Representatives,
Subcommittee on Health,
Committee on Veterans' Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:09 a.m., in Room 334, Cannon House Office Building, Hon. Michael Michaud [Chairman of the Subcommittee] presiding.
Present: Representatives Michaud, Snyder, Hare, Salazar, Doyle, Miller, Stearns, and Moran.
Also present: Representatives Filner and Walz.
OPENING STATEMENT OF CHAIRMAN MICHAUD
Mr. MICHAUD. I would like to call this public hearing to order, and I would like to thank everyone for coming today. Today's legislative hearing is an opportunity for Members of Congress, veterans and the U.S. Department of Veterans Affairs (VA) and other interested parties to provide their views on, and discuss, recently introduced legislation within the Subcommittee's jurisdiction in a clear and orderly fashion. I do not necessarily agree or disagree with any bills before us today, but I believe that this is an important part of the legislative process and will encourage frank and open discussions of these ideas.
We have five bills today. Congressman Filner, the distinguished Chairman of the full Veterans' Affairs Committee, has two of the bills. And without further ado, I would like to recognize Chairman Filner on H.R. 4089 and H.R. 5888. Mr. Filner.
[The statement of Chairman Michaud appears in the Appendix.]
STATEMENTS OF HON. BOB FILNER, CHAIRMAN, COMMITTEE ON VETERANS' AFFAIRS, AND A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA; HON. MICHAEL F. DOYLE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA; AND HON. TIMOTHY J. WALZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA
Mr. FILNER. Thank you, Mr. Chairman. And I want to thank you and Mr. Miller and all the Members of the Subcommittee for a very active year. You have done a tremendous job, passed quite a lot of legislation, and we really thank you for what you have done in this Congress.
I would like to speak first on H.R. 5888, which comes from an incident that came to my attention in October 9th of last year. Stephen Brady, a 60 percent service-connected veteran, was in a serious motorcycle accident. Following the accident, Stephen was transported to a non-VA medical facility for emergency care. But, the VA has refused to pay for any of his emergency medical care in the non-VA facility because he carried an auto insurance policy which paid for $10,000 of that care.
The law, in its current form, does not allow the VA to pay for emergency treatment for nonservice-connected conditions in non-department facilities if a veteran has third-party insurance that pays for any portion, of the emergency care. This creates an inequity that penalizes veterans with insurance, including auto insurance, which is oftentimes mandated by law. A veteran with an insurance policy which covers any portion of the cost for emergency treatment would be burdened with the remaining amount not covered by insurance. This has caused many veterans undue stress and has placed them in unnecessary financial hardship.
H.R. 5888 eliminates this inequity by requiring the VA to pay for emergency care in non-VA facilities for eligible veterans unless the veteran has other insurance that will pay for the full cost of the emergency care. In short, this bill would require the VA to pay for emergency care in a non-VA facility even if the veteran holds a policy that will pay for a portion of it.
I look forward to the comments from other witnesses today and interested stakeholders to make sure that what happened to Stephen Brady does not happen to other veterans.
If I may move to H.R. 4089. The background of this bill is that in 1991, Congress passed legislation to provide VA healthcare professionals, such as registered nurses (RNs), physicians, physician assistants, dentists, podiatrists and optometrists, with essentially the same labor rights held by other Federal employees under title 5 of the United States Code. Under this law, VA healthcare professionals are able to negotiate, file grievances and arbitrate disputes over working conditions. The law does not make an exception for disputes arising from issues such as direct patient care and clinical confidence, peer review and the establishment, determination or adjustment of employee compensation. The Secretary has the authority to determine whether an issue or concern falls under the previous exceptions. This determination by the Secretary is not subject to collective bargaining or review by any other agency.
Healthcare professionals have complained to this Committee that the VA is interpreting these narrow exceptions in law very broadly and consequently is negatively affecting areas such as schedules and floating assignments for nurses and retention allowances for physicians. From a broader perspective, these labor issues may adversely impact VA's ability to recruit and retain high quality healthcare professionals, particularly nurses. Almost 22,000 of the RNs caring for our veterans will be eligible for retirement by 2010, while 77 percent of all RN resignations occur within the first five years.
So I have introduced this bill to address these issues. It amends the law and repeals the three exceptions to the rights of VA healthcare professionals to engage in collective bargaining. It also requires the VA to make a final decision with respect to the review of an adverse personnel action against a VA employee not later than 60 days after such action has been appealed.
Further, these decisions may be subject to judicial review in the appropriate U.S. District Court or, if the decision is made by a labor arbiter, in the U.S. Court of Appeals for the Federal Circuit.
Again, I look forward to the comments from the following panels and interested stakeholders. We need to be sure that VA healthcare professionals are afforded the appropriate collective bargaining rights. I hope this will ultimately lead to improved recruitment and retention of healthcare providers within the VA.
Again, thank you, Mr. Chairman. I appreciate all the work you have done in this Congress.
[The statement of Congressman Filner appears in the Appendix.]
Mr. MICHAUD. Once again, thank you, Mr. Chairman. And you have done a phenomenal job over the last year and a half. I really appreciate your leadership on veterans' issues and look forward to working with you.
Are there any questions for Mr. Filner on H.R. 5888 or H.R. 4089? Mr. Miller?
Mr. MILLER. Thank you, Mr. Chairman. Mr. Chairman, thank you for introducing both these pieces of legislation. I think we all think that veterans, whether insured or not insured, should be covered in any emergency situation, but I have a couple of questions. What would VA's obligation be if the rate billed by the non-VA provider is higher than the VA authorized rate?
Mr. FILNER. We split up the money. You and I split the money. That was a joke.
Mr. MILLER. I understand.
Mr. FILNER. Lighten up. Chill out, guys. Come on.
Mr. MILLER. It is not so easy on that side, is it?
Mr. FILNER. Especially with a guy with no sense of humor. Cathy, do you have a quick answer for that?
Ms. WIBLEMO. I don't. I would have to look into that further.
Mr. FILNER. If the insurance covers more than the cost of the problem? Well, the third party covers it.
Mr. MILLER. Is it the intent of this bill for VA payment to fully extinguish the veteran's responsibility to the provider so that the veteran wouldn't be liable for any outstanding balance and at the same time, would the VA be required to cover any co-payments or deductible that the veteran may owe to a third payer?
Mr. FILNER. That is a good question. Cathy, do you have that?
Ms. WIBLEMO. The original intent would be for the VA to cover what was not covered by the partial coverage of whatever third-party insurance they had. That was the original intent.
Mr. MILLER. Including deductibles, right?
Ms. WIBLEMO. That is right.
Mr. MILLER. If I could on H.R. 4089, under title 5, employee compensation cannot be subjected to collective bargaining. Would this allow unions to bargain over the amount of a title 38 employee's compensation?
Mr. FILNER. It moves the three exceptions, but the total compensation, is not subject to this.
Ms. WIBLEMO. I want to say no, it is not. But, again, I would have to answer that—
Mr. MILLER. I have a couple more questions for the record, but because we have got a couple of folks that want to ask some questions too, I will submit them. Thank you, Mr. Filner.
Mr. FILNER. The idea here, is to bring into the collective bargaining procedures the working conditions, which have been taken out or used as an exception by the Secretary. The idea is to bring those back in.
Mr. MICHAUD. Are there any other questions for Mr. Filner?
Mr. STEARNS. Yes.
Mr. MICHAUD. Mr. Stearns?
Mr. STEARNS. Thank you, Mr. Chairman. It is not often that we have the distinguished full Chairman that we can ask questions to, so I am asking you a question and I am understanding if it is a little difficult to answer. I say that at the outset so you don't feel too intimidated here. At our legislative hearing two weeks ago, the Nurses Association—
Mr. FILNER. I have got another appointment.
Mr. STEARNS. Okay. The Nurses Organization of Veterans Affairs (NOVA) testified and on this bill, H.R. 4089, they expressed concern that if clinical matters were subject to bargaining, then critical clinical programs such as extending the hours of mental health clinics or mandating traumatic brain injury training for all providers, could be impacted and subject to protracted negotiations, which in the end would delay the implementation for patients at risk and, in fact, affect their safety.
So I guess the question is, in light of what the Nurses Organization of Veterans Affairs had said about this bill, and particularly the fact that implementation would affect the safety, as well as the efficient responding to veterans, I was hoping that you could perhaps allay our concerns.
Mr. FILNER. Obviously we hope that does not happen.
Mr. STEARNS. Right. They should know. They are the experts. I am just telling you that if they present these fears—obviously they have high credibility and we as Members of Congress, I think, should take their concerns into effect and take them seriously.
Mr. FILNER. With your permission, Mr. Stearns.
Mr. STEARNS. Sure.
Mr. FILNER. The third panel, the employee groups are going to testify. I would like for them to give the more precise answer.
Mr. STEARNS. And that is probably—
Mr. FILNER. It is an important question and obviously we want to continue high quality and not interfere in a medical decision, but there is a balance here and this is trying to right a balance.
Mr. STEARNS. They are the experts. So maybe the next panel they can also provide a bit better.
Mr. FILNER. Okay. Thank you.
Mr. STEARNS. Just another question. It is my understanding, Mr. Chairman, that the VA is not in favor of this bill; is that correct? Does the bill provide the VA any recourse if they feel that a nonclinical labor arbitrator has made an error in its consideration of a clinical or patient care issue? I think that is an important thing that is probably one of the reasons why the VA is against this bill.
Mr. FILNER. This is subject to appeal, if an arbitrator is involved with a Court of Appeals, a Federal District Court, or a Federal Circuit Court. Again we will hear some testimony from better experts than me, but I believe it is subject to appeal.
Mr. STEARNS. All right. Thank you, Mr. Chairman.
Mr. MICHAUD. Thank you very much. Any other questions? If not, thank you very much, Mr. Filner. The next bill is H.R. 6122 from Representative Walz, the "Veterans Pain Act of 2008."
STATEMENT OF HON. TIMOTHY J. WALZ
Mr. WALZ. Well, thank you, Mr. Chairman, Ranking Members and Members of the Subcommittee. I appreciate the thoughtful nature you put into this incredibly important component of veterans care, and thank you for the opportunity to present this piece of legislation.
This piece of legislation, H.R. 6122, the "Veterans Pain Care Act of 2008," I introduced on May 21, 2008. And basically what this bill does is require the Secretary of the VA to implement a comprehensive policy on pain management for all members enrolled in the VA system and to carry out a program of research, training and education on pain and acute chronic pain.
Pain is a leading cause of disability among our veterans. Modern warfare often leads to serious but survivable injuries. And while advances in medical technology have saved lives, many veterans are afflicted with acute and chronic pain. As a result, providing adequate pain management is a crucial component of improving the quality of life.
The VA recognizes that chronic and acute pain amongst our veterans is a serious problem, and I am here today to make very clear I applaud the work that our VA has done. They have been exemplary in providing this and they have taken a lead role on this. This piece of legislation simply clarifies, streamlines and brings the concerns of many of our veterans and our researchers into pain management to a tighter focus, and this legislation will give the VA the necessary tools to do exactly that.
By making it clear that Congress considers pain a priority and putting it into law, VA's pain care programs will be less subject to the winds of political change and budget cuts. At the same time, this bill is not duplicative of any efforts the VA is already making. It will not be cumbersome, especially since the bill is not overly prescriptive, a concern with earlier versions of the bill that I think this one has rectified.
On that note, I have made a special effort to make sure that this bill is virtually identical to the one that the Senate worked. It had the support of Chairman Akaka and Ranking Member Burr, and on Tuesday night, I am pleased to say, it passed unanimously in the Senate. So I am hopeful that this bill, the companion version, will be as bipartisan and will move as quickly through the House and become law.
The bill is part of an effort to provide pain care for our servicemembers across their careers, and I would like at this point to highlight the work that Congressman Dave Loebsack from Iowa is doing on the Armed Services Committee of making sure his legislation was included in the National Defense Authorization Act that passed.
In this way, these two bills will help provide the seamless transition we talk about of care from the battlefield, back to the rehabilitation facility, into the VA system.
This bill is supported by a broad coalition of groups who are involved in pain management, including the Pain Care Coalition and the American Pain Foundation. And without objection, I would like to submit the letters of support from those two and other organizations.
Mr. MICHAUD. Without objection, so ordered.
Mr. WALZ. I am pleased that a number of veteran service organizations will be here today to express their support for this bill. There is a role for them in this bill. The VA will work with our veteran service organizations and other experts in pain management to continually improve its comprehensive policy.
There is also an oversight mechanism so that Congress can ensure that this happens. The VA is required to report regularly to Congress on the progress it is making in implementing some of these strategies. With these oversight mechanisms and by directing the VA to update its management using best practices, as well as carrying out extensive research, the ultimate aim of this bill is to lay a foundation for the ongoing improvement in pain management. In this way, we are going to work towards what I feel is that moral obligation to care for our veterans. It is going to bring innovative techniques. It is going to streamline the system, and it is going to make sure our veterans have the highest quality of life possible with the new innovations that come forward.
So I thank you for being able to introduce this piece of legislation. I thank you for your consideration of it. And I would sure answer any questions that you might have.
[The statement of Congressman Walz and the attached Pain Care Coalition letter of support, appear in the Appendix.]
Mr. MICHAUD. I want to thank you very much, Mr. Walz, for your testimony and not only for your service here in Congress, but your service to this great Nation of ours.
Are there any questions for Mr. Walz?
Mr. Miller?
Mr. MILLER. The VA says they oppose the bill basically because it is duplicative in some of the efforts that are ongoing. I understand that there is not really a fiscal impact in what is going on. My question would be, do you think that it might be beneficial for us, we as a Committee, to request that the Inspector General (IG) conduct a review of VA's pain management policy currently to see what the effectiveness is of what VA already has in place?
Mr. WALZ. And I appreciate it. And I think it is a very valid question, one that we asked very early on. And one of the concerns I had I asked the same thing, Mr. Miller, is the duplicative nature of this. I don't believe it does that, but I am open to that if this Committee believes that is the best way to ensure this. We have talked extensively with the VA. And again I applaud them for the work they have already done on pain management.
One of the things that we have seen and the reason for introducing this piece of legislation is what we have seen from our veteran service organizations and their testimony, and some of the data seems to back this up. It may be the role of the IG to verify that. There is not a consistency across the system. And what we think this bill will do is bring a consistency across the system to making sure that a veteran is not at the whims of geographic location where their pain management is taken care of, but it is simply going to be uniform across.
So I think and my reason for initiating this is because I believe that is happening, but I am more than open to look at that.
Mr. MILLER. So, your idea is not necessarily that the VA is doing a good job with pain management, but basically how they offer it, where they offer it and that it be provided in an adequate location for—
Mr. WALZ. Yes. I think there is a lack of consistency and a lack of direct focus and one that I think again can change according to maybe some of the top people at the VA. I am very pleased with the work they are doing in this and I know our veterans are receiving great care. But it is still somewhat arbitrary on where it is delivered and how it is delivered, and I think this brings it better into focus.
Mr. MILLER. Thank you for your efforts. I yield back.
Mr. MICHAUD. Any other questions? If not, thank you very much, Mr. Walz.
Mr. WALZ. Thank you, Mr. Chairman.
Mr. MICHAUD. The last panelist, which is Mr. Doyle, on H.R. 6114. I also want to thank you for what you are doing for our veterans and for serving on this Committee as well.
Mr. Doyle?
STATEMENT OF HON. MICHAEL F. DOYLE
Mr. DOYLE. Thank you, Mr. Chairman and Ranking Member Miller and Members of the Subcommittee, for including H.R. 6114 in today's hearing. I introduced the "Simplifying and Updating National Standards to Encourage Testing of the Human Immunodeficiency Virus Act of 2008," also known as the “Sunset Act,” with my friend and colleague, Charlie Dent of Pennsylvania, to correct an anachronism in our veterans' healthcare laws.
Congress does not often step in and tell the Veterans Health Administration how to diagnose and treat patients in the system, and I think we can all agree that is wise. However, in 1988 Congress passed a law that requires the VA to obtain a patient's written consent before being tested for Human Immunodeficiency Virus (HIV), the virus that causes Acquired Immune Deficiency Syndrome (AIDS). While that might have been a best practice in 1988, it is now outdated and needs to be repealed.
According to the VA's Public Health Strategic Working Group, 55 percent of HIV positive veterans had already suffered significant damage to their immune system by the time they were diagnosed as HIV positive. These veterans have been to VA to get medical care an average of six times prior to diagnosis. That same panel says, and I quote, “the bottom-line here is that we are likely dealing with a situation where there are thousands of HIV infected veterans who are unaware” that they are HIV positive.
This is unacceptable to me and it should be unacceptable to anyone else who cares about the public's health and the well-being of our veterans.
The face of a person with HIV/AIDS has also changed since 1988. Today, 53 percent of VA patients have a risk factor indicating a higher prevalence of HIV, but only 35 percent of that higher risk population is tested. The barriers in current law make testing a disturbingly rare occurrence.
In 2006, the Centers For Disease Control and Prevention (CDC) released guidelines that recommended HIV testing become a normal part of medical care where appropriate. After reviewing all of the clinical data, CDC strongly believes that separate written consent for HIV screening should no longer be required.
In the Administration's budget request this year, the VA identified this issue as a problem that needs to be fixed quickly. Concerns have been raised that the CDC's new guidelines don't go far enough to promote HIV prevention counseling. That debate is reasonable, and I understand that the VA is open to discussing that issue with veterans and other stakeholders.
That is why I drafted my bill to be agnostic on how the VA should proceed after the current regulations are repealed. The VA has pledged to follow the CDC's guidelines and protect patients' privacy by ensuring their right to an informed, verbal consent before screening as they do with any test for a serious condition.
Perhaps the current guidelines will be in place for the foreseeable future, but as the profile of HIV changes, the VA should be as free as any other medical provider to update their screening standards without future congressional intervention.
I am grateful to the Veterans of Foreign Wars of the United States (VFW) and American Veterans (AMVETS) for their strong support of the Sunset Act. I would also like to offer letters of support from AIDS Action, the AIDS Institute and OraSure Technologies for the record.
And finally, I want to thank the Committee staff for their help. The "Sunset Act" strikes an outdated law that puts veterans at risk, and it encourages medical professionals to create appropriate HIV screening standards after consultation with veterans, prevention groups and other stakeholders. I believe that it should be reported out of Committee and passed without delay.
I thank you for giving me the opportunity to speak today.
[The statement of Congressman Doyle appears in the Appendix.]
Mr. MICHAUD. Thank you very much, Mr. Doyle.
Mr. Miller?
Mr. MILLER. Thank you, Mr. Chairman. I think this is a perfect example of why some things don't need to be put in legislative form, so that it doesn't require it coming back before this particular body. I thank you very much, Mr. Doyle, and also our friend and colleague, Mr. Dent, who has made clear to me his support of this particular piece of legislation. I hope that we can move this legislation forward quickly.
I yield back the balance of my time.
Mr. MICHAUD. Thank you very much.
Mr. Hare?
Mr. HARE. Thank you, Mr. Chairman. And I thank my friend, Mr. Doyle, for introducing this legislation. It is a great bill and I wholeheartedly support it. I just had a couple of questions.
There is still a stigma with HIV, let alone getting the test. And it is seen as a sign of weakness if you have to take the test by some people. And should the separate written consent regulation be removed? And if so, what will the process be to get consent for the test?
Mr. DOYLE. It is going to be verbal consent. And I liken this with any other serious test. So basically when they want to perform the test, they make an informed consent. The doctor has a conversation with the patients. There is protections in there following the CDC guidelines to make sure that privacy concerns are addressed. And then once the person gives a verbal consent, then they can proceed with the test.
Mr. HARE. Then how will the results be recorded in the patient's record then?
Mr. DOYLE. Well, I think the results will be part of that patient's file, subject to the privacy protection, so that would only be information available to the patient and his doctor.
Mr. HARE. And then just lastly, currently patients who get tested in the non-VA world get an anonymous identifier to ensure their confidentiality. And how will this confidentiality be assured for the vets?
Mr. DOYLE. What the VA has done is pledge to follow the CDC guidelines that incorporates privacy concerns into it, And they have pledged in our conversations with them to work with CDC to make sure they follow those guidelines so that patient privacy is protected.
Mr. HARE. Once again, let me just thank you, Mr. Doyle, for a great piece of legislation. And you and Congressman Dent are to be commended. And I support this. And hopefully we can get this done and done quickly. And I yield back, Mr. Chairman.
Mr. MICHAUD. Thank you very much, Mr. Hare. Well, once again, thank you very much, Mr. Doyle, for your testimony today, and we will look forward to moving this legislation as soon as possible.
I would like to call the second panel up. Dr. Cross is the Deputy Under Secretary for Health, who is accompanied by Mr. Hall, as well as Kathryn Enchelmayer.
I would like to thank you for coming this morning, and I look forward to hearing your testimony. Dr. Cross.
STATEMENT OF GERALD M. CROSS, M.D., FAAFP, PRINCIPAL DEPUTY UNDER SECRETARY FOR HEALTH, VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY WALTER A. HALL, ASSISTANT GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL; AND KATHRYN ENCHELMAYER, DIRECTOR, QUALITY OF STANDARDS, OFFICE OF QUALITY AND PERFORMANCE, VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS
Dr. CROSS. Good morning, Mr. Chairman and Members of the Subcommittee. Thank you for inviting me to present the Administration's views on five bills that would affect the Department of Veterans Affairs programs providing veterans healthcare. With me today are Walter Hall, Assistant General Counsel, and Kathryn Enchelmayer, Director of Quality Standards from the Office of Quality and Performance. I would like to request my written statement be submitted for the record.
Mr. MICHAUD. Without objection, so ordered.
Dr. CROSS. And I thank the Committee for its continued efforts on behalf of VA and our veterans. This Committee and this Congress have given serious consideration to many ideas that would improve the healthcare services of America's veterans. I thank the Committee for your attention and interest, and I am grateful for this opportunity to provide views on some of the proposals being considered.
Mr. Chairman, all of us know that prompt testing of HIV infection saves lives. Not only does it enable HIV positive patients to get treatment earlier, improving their prognosis and quality of life, but it also keeps patients with the virus from unknowingly spreading it to sexual partners. By repealing outdated informed-consent and counseling guidelines, H.R. 6114 will allow us to test our patients more quickly and allow VA's testing procedures to align with current guidelines from the CDC and other healthcare organizations.
We support this legislation. When veterans require emergency care, they need to focus on recovery, not on how they are going to pay for that care. VA recognizes that providing for emergency care is part of our obligation to our enrollees, and we want to make sure that enrolled veterans and their families do not need to worry about how it will be paid for. We also recognize that the current law governing payments for emergency care needs revision in order to fully meet that goal.
Unfortunately, in our opinion on H.R. 5888, we cannot support the proposed legislation without further clarification. As an example, under the current proposal, the VA is not only the payer of last resort, but also the only payer. We recommend the bill be modified to clarify that VA should be a secondary payer after private entities and other Federal programs, such as Medicare, have been billed.
Mr. Chairman, chronic pain persists for long periods in those who are afflicted by it. It is resistant to many treatments and can cause severe problems for sufferers. While we appreciate H.R. 6122's focus on that vital issue, I want to make sure that the Committee is aware that pain management is already an important priority for our department. VHA's national pain management strategy sets out our objectives in this area. We are developing a comprehensive, multicultural, integrated systemwide approach that will reduce the pain and suffering associated with a wide range of injuries and illness, including terminal illness. We have established an interdisciplinary Committee to oversee the strategy implementation responsible for ensuring that every veteran and every network has access to pain management services and for making certain our clinicians are probably educated on how to provide proper pain management care. I would be pleased to meet with you to discuss the activities in this area in greater detail.
Mr. Chairman, allowing the Secretary of Veterans Affairs and the Under Secretary for Health to establish standards of professional conduct and competency is vital to the future success of VA healthcare. Because of this, VA strongly opposes H.R. 4089, which would make matters relating to direct patient care, matters relating to clinical competence, clinical healthcare providers subject to collective bargaining. We believe the current restriction on collective bargaining rights is a sound compromise between the VA's mission to serve America's veterans with the honor and care they deserve and the interests of Title 38 physicians, dentists and nurses in bargaining over conditions of their employment.
I cannot overstate how important it is to continue to allow those responsible for the care and safety of our veterans to establish standards for professional conduct and competency at our hospitals and clinics. The VA very much believes that this proposed legislation should not become law.
Finally, VA also has serious concerns about H.R. 4463, which would mandate State licensure for physicians in specific States of practice. As the Committee knows, VA is a national healthcare system that crosses State boundaries and uses progressive technologies, such as telemedicine, to reach veterans in remote areas or in States outside of the base station. H.R. 4463 would make these practices difficult, if not impossible to continue. Our physicians who practice at VA Medical Centers in one State would not be able to care for veterans at a satellite community-based outpatient clinic located across a State border without having multiple licenses. Requiring multiple licenses would put VA at a competitive disadvantage in recruiting physicians. In addition, the bill would also severely limit VA's ability to support the Nation during periods of emergency, as the VA did in Hurricane Katrina.
Mr. Chairman, this concludes my prepared statement. And once again, I thank you and your Committee for your continued support of veterans and our Department. And at this time, I would be pleased to answer any questions that the Members have.
[The statement of Dr. Cross appears in the Appendix.]
Mr. MICHAUD. Thank you very much, Dr. Cross. On H.R. 6122, the "Veterans Pain Care Act of 2008," you mentioned the VA is already doing that. How effective is the national pain management strategy in creating a systemwide standard for pain management? And the second part of that question is do all of VHA clinicians receive the same employee education regarding pain assessment, as well as treatment?
Dr. CROSS. The consistency is derived from the directive that we have developed and put into practice several years ago. By the way, I should mention I have with me today a copy of the revised directive that we are about to publish, which even further moves this forward. We are proud of the work that we are doing on pain management. We consider it very important.
Let me tell you how we maintain consistency. We use our electronic health record, for instance, to do screening. We do records review to go back and look at how well we did after the fact. And as I recall, the percentages of compliance with some of these standards, including education, including the screening, is at the 95 percent level.
We are doing research on this. We are leaders in research in the United States. We support pain management. We feel it is very important. Some of the research that we are doing right now I think will lead the Nation in the future for best practices of care of everyone.
Mr. MICHAUD. And how often are the strategy pain management protocols reviewed and revised? Is it an ongoing process or—
Dr. CROSS. The directives are reviewed typically every several years, but we don't wait for that. We have an interdisciplinary Committee that meets periodically several times a year in one form or another to review what we are doing and to recommend changes. And so because we have this ongoing effort, we stay current.
Mr. MICHAUD. And is this a policy when you look at pain management that the Secretary or yourself has made a priority and that is why you are doing it without legislation?
Dr. CROSS. I think that we did it because we heard from our patients, we heard from our providers that this was important. We recognized a need that existed in the past that we needed to pay more attention to this. And this was created, as I said, several years ago. Certainly with Operation Iraqi Freedom and Operation Enduring Freedom veterans returning to us, we do see cases of chronic pain requiring special techniques to manage it, and we wanted to make sure that we were taking care of that.
Mr. MICHAUD. And do you have any concerns—this being an election year, there definitely will be a change of administration next year, whichever administration it might be no one knows yet—that actually this might not be a priority? And even though you are doing it now, that it might not happen next year or the year after?
Dr. CROSS. I don't have any such concern. I can't imagine that there would be any letup on the emphasis related to this.
Mr. MICHAUD. Thank you.
Mr. Miller?
Mr. MILLER. Thank you, Mr. Chairman. I can assure you when Senator McCain is elected he will make it a high priority. I have some questions—
Mr. MICHAUD. Which office is—
Mr. MILLER. Wait a minute now. I have some questions for the record.
The one thing I did want to know, I may be looking for something in the dark that is not there. In one of your comments regarding the emergency pay situation, I just hope we don't ever get to—I think it is something that is very important. You also said that we want to make VA the secondary payor. I hope we don't get to a point where VA thinks that in certain situations that it would be okay to not refer, but to cause veterans not to be able to go to a veterans' facility for emergency care and then require them to go to a non-VA facility so that VA does not have to make that payment. I know that is not the intent, clearly it could happen. I just think it is important that we address that on the record, that that would—I mean, it can be done in many different ways. We have heard it where it has happened before—not for that reason—where they have been required or an ambulance has taken them in error or for one reason or another to another facility. I just want to make sure that VA never considers that.
Dr. CROSS. I agree with you, Congressman. That would be very unfortunate. If I heard of such a case being carried out by one of my staff, they would have a bad day.
Mr. MILLER. Thank you, Dr. Cross.
Mr. MICHAUD. Mr. Hare?
Mr. HARE. Thank you, Mr. Chairman. I can understand the concerns that the VA has regarding H.R. 4463, the "Veterans Health Care Quality Improvement Act." And I am deeply concerned over the 10 deaths that occurred at the hospital in Marion, Illinois. However, I also understand the importance for VA doctors to be able to be transferred across State lines and for the VA to continue the use of telemedicine. But patient care and safety should never be compromised. What kind of compromise can be reached, do you think, to ensure that physicians and other medical personnel have high levels of credentials and are properly certified while still allowing the VA to operate as a national health system? Because clearly there are flaws in the system.
Dr. CROSS. I am going to ask Ms. Enchelmayer to support me on this. But before that, I want to say there was a misunderstanding about one case that probably gave origin to this bill. The individual in question was licensed in the State of Massachusetts and moved to Illinois. What is often not pointed out is he was also licensed in Illinois.
Ms. ENCHELMAYER. Thank you, Dr. Cross. And we do appreciate the question. VA actually has a very high standard of credentialing its practitioners, much higher than in the private sector of healthcare. We already verify all current and previously held licenses of our physicians. That is not something that is standard in the industry at this point in time. Most people just verify current licensure. But we do go back and look at a licensure history of a practitioner and we obtain information from the primary source.
But we also recognize that that has not been enough. We monitor the disciplinary action of physicians. I actually personally receive from the Federation of State Medical Boards whenever a disciplinary action is taken against a physician and we refer that out for follow-up to the facilities. We are tightening up that process, and my staff and I will be monitoring those actions until closure by the facility, at which time they will have to have obtained the primary source information from the State licensing board of that action.
We are changing our release of information form for all licensed practitioners, and we will be requiring a written verification from all State licensing boards of all of our healthcare practitioners, and this release of information form is now going to actually authorize the State licensing boards to provide not only the closed or public information that is already currently available when we seek that information, but also make a request of the State licensing boards to provide information to us that is pending or open claims against the practitioners.
And the last thing that we are putting in place is there has been some concern as to whether or not practitioners' memory is the best. And we have been working with the Federation of State Medical Boards, and we will shortly be implementing a query that will go to the Federation of State Medical Boards that will give us information on all State licenses of the physicians current and previously held. So it is a secondary system for us to follow up and make sure that we are aware of all current and previously held licenses of our practitioners.
Additionally, we do continue to do the queries to the National Practitioner Data Bank and Health Integrity and Protection Data Bank on licensure actions, medical malpractice payments, and other adverse actions. They have in pilot a proactive disclosure service similar to the disciplinary alert service at the Federation of State Medical Boards. We will be implementing that process, too, over the summer. And what happens with that is whenever a new report is filed with the National Practitioner Data Bank, we will also automatically receive that report and again implement the processes we have on the physician licensure actions, which will allow us to follow those actions to closure with the facilities, making sure again that they have the primary source information.
Our standards are actually much higher than the private industry, and we are just going to take them even higher.
Mr. HARE. Doctor, just one quick question on the pain care legislation we are talking about. I understand that the VA's position is that it is duplicative. Given that, why do you think all these pain care organizations are strongly in support of the bill and believe that more can be done by the VA to make pain care a national priority?
Dr. CROSS. I would like to clarify that I wouldn't use the term that we are in opposition to the bill. The phrase that we are using today is that we don't support it. The intent is clearly in line with what we want to do and what we are doing. So that should be clear. The issue was an additional bureaucratic, perhaps, mechanism that would be put in place with additional reports, and so forth, that we didn't think were necessary and would not add value.
Having said that, we do consider it a very high priority. We do understand the interest from organizations, and if there are additional things that we can do, we listen, and we will take those along and bring those forward as we have already done in the past with this initiative.
I should point out one caution. There were certain medicines that were put on the—available in the Nation that are well-known that had to be recalled a couple of years ago and you see those in the news frequently. Those were never part of our national formulary. So the safeguards and protections that we have in place at the VA I am very proud of and have served us well.
Mr. HARE. I know my time is out. I was just wondering what the difference is between being opposed and not supporting?
Dr. CROSS. It is the intent. We clearly understand the intent behind the legislation, I believe, and we find that our intent is very much the same.
Mr. HARE. Thank you, Doctor. Thank you, Mr. Chairman.
Mr. MICHAUD. Hopefully you can work with the Committee staffs to try to get you to that support area. Mr. Doyle, do you have any questions?
Mr. DOYLE. Just a couple. Thank you, Mr. Chairman. Dr. Cross, my colleague, Mr. Hare, had expressed some concern about informed consent and I thought maybe you could share with us if the Sunset Act becomes law. Could you sort of walk us through what would happen to a veteran who seeks care at VA, will there be any different screening for veterans at higher risk and will the provider seek informed consent from a patient?
Dr. CROSS. I might say that the witness before me I thought did a very good job in answering those questions.
Mr. DOYLE. That is a great answer. That is better than I support you but I don't oppose you.
Dr. CROSS. It would be a verbal consent. The results would come back into our electronic health record system. We deal with sensitive information all day long on all of our patients. We have to abide by all of the regulations that Congress has put in place related to privacy. It is very important. This information would have to abide by those as well. We just don't want things getting in the way that create in effect a barrier to testing.
The nature of HIV has changed dramatically since 1988, and this is not the kind of frightening disease that it was at that time. Much progress has been made. We need to recognize that and let us go on and test more effectively and perhaps prevent some spread of the disease and also perhaps improve quality of life.
Mr. DOYLE. Great. And just one last question on the counseling aspect. There has been some concerns raised that the CDC guidelines don't go far enough in demanding HIV prevention counseling. And I think that reflects a desire for flexibility across types of providers and across the populations. But I want to make sure that VA is doing what is best for veterans. If the law requiring counseling is lifted, will the VA continue to offer prevention counseling for patients in its care, especially for those veterans at higher risk of contracting HIV?
Dr. CROSS. Yes. We consider, of course, prevention to be vital and fundamental to what we do. In our primary care clinics prevention is part of what we do, and not just for HIV, but for smoking and substance abuse and so forth.
I don't have a more detailed answer at this time. I would be happy to provide that for the record.
[The VA submitted an Information Letter from Hon. Jonathan B. Perlin, M.D., Ph.D., MSHA, FACP, Under Secretary for Health, U.S. Department of Veterans Affairs, entitled, "Need for Routine Human Immunodeficiency Virus (HIV) Risk Assessment and Testing," dated September 2, 2005, which appears in the Appendix.]
Mr. DOYLE. Great. Thank you, Dr. Cross. Mr. Chairman, thank you.
Mr. MICHAUD. Once again, I want to thank you, Dr. Cross, and this panel for coming forward today. I look forward to working with you as we move forward on these pieces of legislation, and I want to thank everyone for coming. If there are no further questions, the hearing is closed.
[Whereupon, at 10:57 a.m., the Subcommittee was adjourned.]
APPENDIX
Prepared Opening Statements:
Prepared statement of Hon. Michael H. Michaud, Chairman, Subcommittee on Health, and a Representative in Congress for the State of Maine
Prepared statement of Hon. Jeff Miller, Ranking Republican Member, Subcommittee on Health, and a Representative in Congress for the State of Florida
Witness Prepared Statements:
Prepared statement of Hon. Bob Filner, Chairman, Committee on Veterans' Affairs, and a Representative in Congress from the State of California
Prepared statement of Hon. Michael F. Doyle, a Representative in Congress from the State of Pennsylvania
Prepared statement of Hon. Timothy J. Walz, a Representative in Congress from the State of Minnesota
Prepared statement of Gerald M. Cross, M.D., FAAFP, Principal Deputy Under Secretary for Health, Veterans Health Administration, U.S. Department of Veterans Affairs
Submissions for the Record:
Prepared statement of American Federation of Government Employees, AFL-CIO
Prepared statement of Joseph L. Wilson, Deputy Director, Veterans Affairs and Rehabilitation Commission, American Legion
Prepared statement of Raymond C. Kelley, National Legislative Director, American Veterans (AMVETS)
Prepared statement of Hon. Jerry F. Costello, a Representative in Congress from the State of Illinois
Prepared statement of Joy J. Ilem, Assistant National Legislative Director, Disabled American Veterans
Prepared statement of David J. Holway, National President, National Association of Government Employees, SEIU/NAGE Local 5000
Prepared statement of Patricia Lasala, First Vice President, National Federation of Federal Employees
Prepared letter and attachment of Richard Rosenquist, M.D., Chair, Pain Care Coalition
Prepared statement of Paralyzed Veterans of America
Prepared statement of
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