Good Morning Mr. Chairman and Members of the Subcommittee:

Thank you for inviting me here today to present the Administration’s views on several bills that would affect Department of Veterans Affairs (VA) programs that provide veterans benefits and services. With me today are Walter A. Hall, Assistant General Counsel, and Kathryn Enchelmayer, Director, Quality Standards, Office of Quality and Performance. Thank you for the opportunity to provide VA’s views on the five bills before us today. We strongly support H.R. 6114, which will remove a barrier to VA modernizing its HIV testing policy. We would like to discuss the need for further clarification of the terms of H.R. 5888, which concerns reimbursement or payment of a veteran’s expenses for non-VA emergency treatment. Although we appreciate the goals of H.R. 6122, we believe we are already meeting the requirements of the bill and, as a result, the legislation is unnecessary. I also welcome this opportunity to explain our serious objections to two bills on today’s agenda: H.R. 4089 and H.R. 4463. Those bills have troubling implications for VA and we urge the Subcommittee to give them thorough and measured consideration in view of our comments.

H.R. 4089—Collective Bargaining Rights for Review of Adverse Actions

Mr. Chairman, the major provision of H.R. 4089 would make matters relating to direct patient care and the clinical competence of clinical health care providers subject to collective bargaining. It would repeal the current restriction on collective bargaining, arbitrations, and grievances over matters that the Secretary determines concern the professional conduct or competence, peer review, or compensation of Title 38 employees. The Secretary would also be required to bargain over direct patient care and clinical competency issues, the processes VA uses to assess Title 38 professionals’ clinical skills, and the discretionary aspects of Title 38 compensation, including performance pay, locality pay, and market pay. Because they would be negotiable these matters would also be subject to non-clinical, non-VA third party review.

VA strongly opposes this provision. Prior to 1991, Title 38 professionals did not have the right to engage in collective bargaining at all. The current restriction on collective bargaining rights is a sound compromise between VA’s mission – best serving the needs of our nation’s veterans – and the interest of Title 38 physicians, nurses, and other professionals in engaging in collective bargaining. Importantly, Congress recognized that the Secretary, as the head of the VA healthcare system, would be in the best position to decide when a particular proposal or grievance falls within one of the statutory areas excluded from bargaining. Such determinations should not be legislated. Neither should they be made by a non-clinical third party who is not accountable for assuring the health and safety of the veterans for whom the Department is responsible. If the Secretary and the Under Secretary for Health are going to be responsible and accountable for the quality of care provided to and the safety of veterans, they must be able to determine which matters affect that care. They must be able to establish standards of professional conduct by and competency of our clinical providers based on what is best for our veterans rather than what is the best that can be negotiated or what an arbitrator decides is appropriate. The Under Secretary for Health has been delegated the authority to make these discretionary determinations. VA has not abused this discretionary authority. Since 1992, there have been no more than 13 decisions issued in a one-year period and, in most cases, even far fewer decisions than that. This is particularly striking given the number of VA healthcare facilities and bargaining unit employees at those facilities. We are therefore at a loss to understand the need for this provision.

H.R. 4089 would also transfer VA’s Title 38 specific authorities, namely the right to make direct patient care and clinical competency decisions, assess Title 38 professionals’ clinical skills, and determine discretionary compensation for Title 38 professionals, to independent third-party arbitrators and other non-VA non clinical labor third parties who lack clinical training and understanding of health care management to make such determinations. For instance, labor grievance arbitrators and the Federal Service Impasses Panel would have considerable discretion to impose a clinical or patient care resolution on the parties. VA would have limited, if any, recourse if such an external party erred in its consideration of the clinical or patient care issue. The exceptions to collective bargaining rights for Title 38 employees identify areas that directly impact VA’s ability to manage its healthcare facilities and monitor the professional conduct and competence of its employees; management actions concerning these areas must be reserved for VA professionals.

This bill would allow unions to bargain over, grieve, and arbitrate subjects that are even exempted from collective bargaining under Title 5, including the manner by which an employee is disciplined and the determination of the amount of an employee’s compensation. That would be unprecedented in the Federal government. Such a significant change in VA’s collective bargaining obligations would adversely impact VA’s budget and management rights; it would also skew the current balance maintained between providing beneficial working conditions for Title 38 professionals and meeting patient care needs, jeopardizing the lives of our veterans.

H.R. 4463—“Veterans Health Care Quality Improvement Act”

We recently provided the Committee with our official views on H.R. 4463. Our views letter included a very detailed discussion of each of the bill’s provisions and implications. We will therefore take this important opportunity to discuss only the bill’s provisions that we find objectionable and deleterious to the fundamental operations of the Veterans Health Administration (VHA).

First, the requirement that within one year of appointment each physician practicing at a VA facility (whether through appointment or privileging) be licensed to practice medicine in the State where the facility is located is particularly troubling and we believe harmful to the VA system. VA therefore strongly objects to enactment of this provision. VHA is a nationwide health care system. By current statute, to practice in the VA system, VA practitioners may be licensed in any State. If this requirement were enacted, it would impede the provision of health care across State borders and reduce VA’s flexibility to hire, assign and transfer physicians. This requirement also would significantly undermine VA’s capacity and flexibility to provide telemedicine across State borders. VA makes extensive use of telemedicine. In addition, VA’s ability to participate in partnership with our other Federal health care providers would be adversely impacted in times such as the aftermath of Hurricanes Katrina and Rita, where we are required to mobilize members of our medical staff in order to meet regional crises.

Currently, physicians who provide medical care elsewhere in the Federal sector (including the Army, Navy, Air Force, U.S. Public Health Service Commissioned Corps, U.S. Coast Guard, Federal Bureau of Prisons and Indian Health Service) need not be licensed where they actually practice, so long as they hold a valid State license. Requiring VA practitioners to be licensed in the State of practice would make VA’s licensure requirements inconsistent with these other Federal healthcare providers and negatively impact VA’s recruitment ability relative to those agencies. In addition, many VA physicians work in both hospitals and community-based outpatient clinics. Many of our physicians routinely provide care in both a hospital located in one State and a clinic located in another State. A requirement for multiple State licenses would place VA at a competitive disadvantage in recruitment of physicians relative to other health care providers.

Although the provision would allow physicians one year to obtain licensure in the State of practice, many States have licensing requirements that are cumbersome and require more than one year to meet. Such a requirement could disrupt the provision of patient care services while VA physicians try to obtain licensure in the State where they practice or transfer to VA facilities in States where they are licensed. The potential costs of this disruption are unknown at this time.

Further, we are not aware of any evidence of a link between differences in State licensing practices and quality of patient care. In 1999, the General Accounting Office reviewed the effect on VA’s health care system that a requirement for licensure in the State of practice would have. The GAO report concluded, in part, that the potential costs to VA of requiring physicians to be licensed in the State where they practice would likely exceed any benefit, and that quality of care and differences in State licensing practices are not directly linked. See GAO/HEHS-99-106, “Veterans’ Affairs Potential Costs of Changes in Licensing Requirement Outweigh Benefit” (May 1999).

Second, the bill includes a provision that would prohibit VA from appointing physicians to VHA unless they are board certified in the specialties of practice, although this requirement could be waived (not to exceed one year) by the Regional Director for individuals who complete a residency program within the prior two year period and provide satisfactory evidence of an intent to become board certified. VA strongly opposes this provision of H.R. 4633. Current law does not require board certification as a basic eligibility qualification for employment as a VA physician. VA policy currently provides that board certification is only one means of demonstrating recognized professional attainment in clinical, administrative or research areas, for purposes of advancement. However, we actively encourage our physicians to obtain board certification. Facility directors and Chiefs of Staff must ensure that any non­board certified physician, or physician not eligible for board certification, is otherwise well qualified and fully capable of providing high-quality care for veteran patients. VA should be given considerable flexibility regarding the standards of professional competence that it requires of its medical staff, including the requirement for specialty certification. Were this measure enacted, it could have a serious chilling effect on our ability to recruit very qualified physicians. At this point in time, VA has physician standards that are in keeping with those of the local medical communities.

Moreover, the bill would provide that the board certification and in-State licensure requirements would take effect one year after the date of the Act’s enactment for physicians on VA rolls on the date of enactment. This would at least temporarily seriously disrupt VA’s operations if physicians are unable to obtain board certification and in-State licensure within one year, or are unable to transfer to a State where they are licensed.

Mr. Chairman, we want to emphasize that we support the intent of several provisions of H.R. 4633 and have already been taking actions to achieve many of the same goals. We would welcome the opportunity to meet with the Subcommittee to discuss recent actions we have undertaken to improve the quality of care across the system, including program oversight related measures.

H.R. 5888—Expansion of Eligibility for Reimbursement for non-VA Emergency Care

H.R. 5888 would modify the eligibility requirements for receiving payment or reimbursement of expenses incurred in receiving unauthorized emergency treatment from a non-VA provider for a non-service connected disability. Currently, to be eligible for reimbursement of such expenses, a veteran must meet a number of criteria, including that he or she not have "other contractual or legal recourse against a third party that would, in whole or in part, extinguish such liability to the provider." H.R. 5888 would amend that requirement so that eligibility would be extended to a veteran who has no other contractual or legal recourse against a third party that would in whole extinguish the veteran's liability to the provider. For purposes of this benefit, the relevant law defines a "third party" as:

• A Federal entity.
• A state or political subdivision of a State.
• An employer or an employer's insurance carrier.
• An automobile accident reparations insurance carrier.
• A person or entity obligated to provide or to pay the expenses of health services under a health-plan contract.

Mr. Chairman, we recognize and appreciate the gap in VA benefits that this bill seeks to correct. We welcome the opportunity to work with you and the Subcommittee to meet the desired end. However, we cannot support H.R. 5888 as currently drafted. Under existing law, VA is the payor of last resort; as such, we are the only payor. It is not clear whether H.R. 5888 would require VA to be a secondary payor in cases where a veteran receives payment from a third party that covers only part of the veteran's outstanding liability to the non-VA provider. The bill should therefore be modified to clarify that VA should be the secondary payor among private entities and other Federal programs (e.g. Medicare). It is also unclear what VA's obligation would be if the rate billed by the non-VA provider is higher than the rate that VA is authorized to pay under the program, i.e. 70 percent of the Medicare rate. The bill should be modified to clarify whether VA would be required to pay only the difference between the amounts paid by the third party and the VA allowable amount. We believe that VA’s obligation should be limited to the VA-authorized amount, including any payment made by a third party payment. Specifically, VA’s liability (up to 70% of the applicable Medicare rate) should be offset by any third party payment. Further, the bill should clarify whether the veteran would be liable for any remaining balance still due the provider after a responsible third party and VA have made their respective payments. Currently, VA’s payment under this authority, unless rejected and refunded by the provider within 30 days of receipt, extinguishes any liability on the part of the veteran for that treatment. We believe the bill should be modified to make clear that VA payment under this section, as amended by the bill, would still fully extinguish the veteran’s liability to the provider so that the veteran would not be liable for any remaining outstanding balance above the VA-authorized amount.

Interpretation of H.R. 5888 is further complicated by the fact that the definition of a “third party” includes a person or entity obligated to provide or pay the expenses under a health-plan contract. Thus, there is potential overlap between H.R. 5888 and another statutory requirement that the veteran have “no entitlement to the services under a health-plan contract” for the emergency treatment at issue. Lastly, we believe H.R. 5888 could be interpreted to require that VA pay any copayments the veteran owes to the third party.

Mr. Chairman, we are still in the process of developing costs for this bill. As soon as they are available we will forward them for the record.

H.R. 6114—“Simplifying and Updating National Standards to Encourage Testing of the Human Immunodeficiency Virus of 2008”

Mr. Chairman, H.R. 6114 is identical to an Administration proposal we recently submitted to the Congress. We strongly support this bill, which would repeal outdated statutory requirements that require VA to provide a veteran with pre-test counseling and to obtain the veteran's written informed consent prior to testing the veteran for HIV infection. Those requirements are not in line with current guidelines issued by the Centers for Disease Control and Prevention and other health care organizations, which, with respect to the issue of consent, consider HIV testing to be similar to other blood tests for which a patient need only give verbal informed consent. According to many VA providers, the requirements for pre-test counseling and prior written consent delay testing for HIV infection and, in turn, VA's ability to identify positive cases that would benefit from earlier medical intervention. As a result, many infected patients unknowingly spread the virus to their partners and are not even aware of the need to present for treatment until complications of the disease become clinically evident and, often, acute. Testing for HIV infection in routine clinical settings no longer merits extra measures that VA is now required by law to provide. Many providers now consider HIV to be a chronic disease for which continually improving therapies exist to manage it effectively. Repealing the 1988 statutory requirements would not erode the patient's rights, as VA would, just like with tests for all other serious conditions, still be legally required to obtain the patient's verbal informed consent prior to testing.

VA estimates the discretionary costs associated with enactment of H.R. 6114 to be VA $73,680,000 for FY 2009 and $301,401,000 over a 10-year period.

H.R. 6122—"Veterans Pain Care Act of 2008"

H.R. 6122 would require the Secretary, not later than October 1,2008, to develop and implement a comprehensive policy on pain management for enrolled veterans. The bill would require this policy to address:

• System-wide management of veterans' acute and chronic pain .
• A national standard of care for pain management.
• Consistent application of pain assessments
• Assurance of prompt and appropriate pain care treatment and management, when medically necessary.
• Research related to acute and chronic pain, including pain attributable to central and peripheral nervous system damage characteristic of injuries incurred in modern warfare.
• Pain care education and training for VA health care personnel.
• Pain care education for veterans and their families.

H.R. 6122 would also require the Secretary to revise the comprehensive policy periodically based on experience and evolving best practice guidelines. It would additionally require the Secretary to develop that policy in consultation with veterans service organizations and other organizations with expertise in the assessment, diagnosis, treatment, and management of pain. Finally, the bill would establish detailed reporting requirements.

VA does not support H.R. 6122 because it is duplicative of on-going efforts. Effective clinical management of our patients' pain is fundamental to the delivery of patient-centered medicine. To that end, in 2003 we established a National Pain Management Strategy to provide a system-wide approach to pain management to reduce pain and suffering for veterans experiencing acute and chronic pain associated with a wide range of illnesses. The national strategy uses a system-wide standard of care for pain management; ensures that pain assessment is performed in a consistent manner; ensures that pain treatment is prompt and appropriate; provides for continual monitoring and improvement in outcomes of pain treatment; uses an interdisciplinary, multi-modal approach to pain management; and ensures VA clinicians are prepared to assess and manage pain effectively. VA's national strategy also called for pain management protocols to be established and implemented in all clinical settings and directed all VHA medical facilities to implement processes for measuring outcomes and quality of pain management. The national strategy is regularly updated based on best-practices and evidence-based medical findings.

To oversee implementation of the National Pain Management System, VHA established an interdisciplinary committee. Part of the committee’s charge is to ensure that every veteran in every network has access to pain management services. The committee is also responsible for making certain that national employee education is provided to VHA clinicians so that they have the needed expertise to provide high quality pain assessment and treatment and for identifying research opportunities and priorities in pain management. It also facilitates collaborative research efforts and ensures that VHA pain management standards have been integrated into the curricula and clinical learning experiences of medial students, allied health professional students, interns, and resident trainees. Moreover, VA already provides education and educational materials to veterans and their families on how to best manage the veterans’ acute or chronic pain. We continually seek to ensure all patients and families who could benefit from patient education receive all the assistance they need.

Because pain management is already a subject of systematic and system-wide attention in the VHA health care system, H.R. 6122 is not necessary. We would be very happy to meet with the Committee to discuss VA’s ongoing pain management program and activities. We estimate there would be no additional costs associated with enactment of H.R. 6122.

Mr. Chairman, this concludes my prepared statement. I would be pleased to answer any questions you or any of the members of the Subcommittee may have.