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Witness Testimony of Robert L. Jesse, M.D., Ph.D., Principal Deputy Under Secretary for Health Veterans Health Administration, U.S. Department of Veterans Affairs

Good afternoon, Madam Chairwoman 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) benefits programs and services.  Joining me today is Susan Blauert, Deputy Assistant General Counsel. 

H.R. 1460:     "Automatic Enrollment of Veterans"

H.R. 1460 would require the Secretary of VA, in cooperation with the Secretary of the Department of Defense (DoD), to automatically enroll combat-theater Veterans described in 38 U.S.C. § 1710(e)(1)(D) in VA’s health care system not later than 45 days after their discharge or separation from active military, air, or naval service.  The Secretary of VA would be required to provide these Veterans with a “Veteran identification” card that: 1) shows they are enrolled in VA’s health care system, and 2) allows them access to VA health care facilities.  The Secretary would also be required to furnish these Veterans with a list of VA medical facilities (including hospitals, outpatient centers, and mental health clinics) that are located within 100 miles of the Veterans’ homes, or the closest VA facilities if none falls within that distance.  It would also require that these Veterans receive at the same time a description of Federal benefits and programs, including educational benefits and job training and placement programs, for which they may be eligible. 

H.R. 1460 would also permit Veterans to opt out of automatic enrollment by requiring, as part of the enrollment process described above, that they also receive the option to decline enrollment.  In cases where automatic enrollment is declined, the Secretary of VA would be prohibited from automatically enrolling those individuals.  A Veteran automatically enrolled in VA’s health care system would have up to 6 months (from the date of enrollment) to disenroll by providing notice to the Secretary.  The Secretary would be required under the bill to disenroll the Veteran within 60 days of receipt of the notice.

Finally, the provisions of H.R. 1460 would become effective 90 days after the date of enactment.

H.R. 1460 would dramatically change the process for transitioning Servicemembers, and VA is still evaluating the impact this change would have on its enrollment model, budget projections, utilization rates, and overall access to our health care system. 

VA is working on many fronts to reach out to all separating Servicemembers and to ensure they know about the benefits they have earned, while making it as easy as possible to avail themselves of these benefits.  Encouraging enrollment is certainly one piece of that effort. 

VA and DoD are working in close partnership to ensure that every Servicemember’s transition from DoD to VA is as smooth as possible.  Together, the two Departments continue to progress in providing a comprehensive continuum of care to optimize the health and wellbeing of Servicemembers, Veterans, and their eligible beneficiaries.  Our joint efforts to provide a "single system" experience of lifetime services encompass efficiencies in three common areas:  operations; health care; and benefits.  Joint planning and resource sharing have reduced duplication and increased cost savings for both Departments.  Our health care goal is a patient-centered health care system that consistently delivers excellent quality, access, and value across the Departments.  We also strive to anticipate and address Servicemember, Veteran, and family needs through an integrated approach to delivering comprehensive benefits and services. 

VA and DoD are cooperating to improve the transition and coordination of care and benefits for Servicemembers and Veterans in four specific areas.  First, in information technology, DoD and VA share a significant amount of health and benefits information today, and the Departments continue to spearhead numerous interagency data sharing activities and are delivering information technology solutions that significantly improve the secure sharing of appropriate electronic health and benefits information for those who have served our country.  Second, in benefits determinations, VA and DoD’s joint efforts have created an integrated disability evaluation process for Servicemembers who are being medically retired or separated.  This new, joint process was designed to eliminate the duplicative, time consuming, and often confusing elements of the separate disability processes within VA and DoD.  Third, in informing Veterans and Servicemembers of the benefits they have earned, the National Resource Directory (NRD) is a comprehensive, Web-based portal that provides Servicemembers, Veterans, and their families with access to thousands of resources to support recovery, rehabilitation, and reintegration.  NRD is a collaborative effort between DoD, Labor, and VA and has more than 13,000 Federal, state and local resources which are searchable by topic or location.  Finally, in mental health, one of our cooperative efforts is the Integrated Mental Health Strategy (IMHS), which was developed to address the growing population of Servicemembers and Veterans with mental health needs.  The IMHS centers on a coordinated public health model to improve the access, quality, effectiveness, and efficiency of mental health services.  Recipients of these services include Active Duty Servicemembers, National Guard and Reserve Component members, Veterans, and their families. 

Because of the complex issues this legislation raises and its wide-ranging impact on VA, we are still developing a position and a cost estimate for this bill.  We will provide these in a letter after the hearing.

H.R. 3016      Joint Operation of Federal Recovery Coordination Program

H.R. 3016 would direct the Secretary of DoD and the Secretary of VA to jointly operate the Federal Recovery Coordination Program (FRCP).  It would require the Departments to ensure that the FRCP assists members of the Armed Forces with severe or catastrophic injuries or illnesses who are unlikely to return to active duty and will most likely be medically separated, as well as Servicemembers and Veterans whose individual circumstances are determined by the Secretary concerned to cause difficulties to the Servicemember or Veteran in transitioning to civilian life.  It would require the military services and the VA to make referrals to the FRCP at the earliest time feasible, including no later than 180 days prior to the last day of the month in which the Servicemember is expected to be retired or separated. 

The bill would also require that the Secretaries of VA and DoD ensure that each Federal Government agency and department provides Federal Recovery Coordinators (FRC) with information, coordination, and cooperation necessary to allow FRCs to: (1) ensure the efficient recovery, transition and reintegration of eligible Servicemembers and Veterans; (2) act as liaisons between such Servicemembers and Veterans and the team of care providers and other personnel involved with a Servicemember or Veteran’s recovery, transition and reintegration; and (3) work closely with case and care-management programs that assist such Servicemembers and Veterans.  H.R. 3016 would require the Secretaries of VA and DoD, no later than 180 days after enactment, to develop a plan to carry out the requirements of the bill, enter into a Memorandum of Understanding (MOU) to jointly carry out the plan, and jointly submit both the plan and the MOU to designated congressional committees.  No later than 180 days after the MOU becomes effective, the bill would require the Secretaries to jointly submit to designated congressional committees, a report describing and evaluating the implementation of the plan and MOU.

While VA appreciates the efforts of Congress to recognize and improve FRCP operations and provide high quality care coordination to wounded, ill, and injured Servicemembers and Veterans, VA does not support H.R. 3016. The Secretaries of VA and DoD are actively engaged on this issue and have directed that the Departments resolve the issue of coordinating efforts between and recognizing the value of each case management and care coordination program within the Departments- to include, but not limited to,  the VA-administered FRCP and the Service-administered Recovery Coordination Programs (RCP).   Much of H.R. 3016 represents a duplication of existing requirements for VA and DoD for providing care coordination, and the requirements in the bill are already included in an existing VA-DoD MOU and in VA and DoD policy.

Because of the nature of the bill’s requirements, VA cannot provide a reliable cost estimate of H.R. 3016.  To provide a reliable estimate VA would need to work with DoD to develop estimates of potential clients who would be referred to FRCP under the eligibility criteria in the bill, which are significantly broader than under current policy.

We note that section 1(a)(5) of the bill would direct the Secretaries of VA and DoD to ensure that information, coordination, and cooperation are provided by each Federal Government agency and department.  We believe this provision was designed, rather, to ensure that VA and DoD appropriately coordinate with other Federal agencies and departments in supporting the responsibilities of FRCs – as VA and DoD cannot direct the actions and responsibilities of other Federal agencies and departments.

H.R. 3245      Efficient Service for Veterans Act

H.R. 3245 would require the Secretaries of VA and DoD to ensure that Vet Centers, established under 38 U.S.C. 1712A, have access to “the Defense Personnel Records Information Retrieval System” and “the Veterans Affairs/Department of Defense Identity Repository system.”

VA is authorized, under 38 U.S.C. 1712A, to establish Vet Centers that provide readjustment counseling to eligible Veterans and certain family members, upon their request.  To be eligible for readjustment counseling, an individual must:  have a Form DD-214 (Certificate of Release or Discharge from Active Duty); have received at least one qualifying medal; have received combat pay or combat tax exemption after

November 11, 1998; or allow VA to independently verify his or her eligibility with DoD. See Vet Centers, 77 Fed. Reg. 14707-14712 (March 13, 2012) (adding 38 C.F.R.

§ 17.2000). H.R. 3245 would allow Vet Centers direct access to DoD’s Defense Personnel Records Information Retrieval System and the VA/DoD Identity Repository system.  While the bill does not discuss the rationale for providing Vet Centers with access to these databases, we believe that the bill is designed to allow Vet Centers to utilize the databases to verify eligibility for readjustment counseling services if a Veteran does not have his or her DD-214.  

VA has no objection to this bill, as it would enable Vet Centers to verify eligibility information in a timely fashion even if the Veteran or Servicemember does not have his or her DD-214.  We would, however, recommend that the bill clarify the purpose for Vet Center access to the databases and the extent to which access is required.  We also recommend that the bill list the information, within these databases, that should be disclosed to Vet Centers—for instance, “information relevant to Vet Center eligibility determinations.”  Without these clarifications, the bill would simply ensure that Vet Centers have access to the databases, but would not specify what level of access would be granted, or the purpose for that access.

VA prides itself on maintaining Veteran and Servicemember confidentiality.  To that end, Vet Centers currently maintain a separate system of records within VA, which effectively “walls off” any client’s personal identifying information from individuals who do not need access to that information. The only time that Vet Centers disclose a client’s personal identifying information is when VA has the client’s authorization or there is an immediate crisis that requires the disclosure.  To protect the confidentiality of active duty Servicemembers and Veterans who request readjustment counseling, we recommend that this bill include a provision to restrict the monitoring or “logging” of Vet Center activity within the databases, other than for lawful purposes, such as law enforcement.

We would be happy to work with the Subcommittee to ensure the bill achieves its goals. Because Vet Centers already have the required technology to access these databases, we estimate that the costs for implementing this bill would be minimal.  We also recommend a technical amendment to the language in H.R. 3245 to reference the “Defense Personnel Records Information Retrieval System” instead of the”Defense Personnel Record Image Retrieval System”.

H.R. 3279      Amending the Eligibility Criteria Under 38 U.S.C. § 1720G(a)(2)(B) to Include Eligible Veterans who have a Serious “Illness”

H.R. 3279 would amend the eligibility criteria for VA’s Program of Comprehensive Assistance for Family Caregivers under 38 U.S.C. § 1720G(a)(2)(B) to include Veterans or Servicemembers who have incurred or aggravated “a serious illness in the line of duty in the active military, naval, or air service on or after September 11, 2001.”  Under current law, eligibility for VA’s Program of Comprehensive Assistance for Family Caregivers is limited to Veterans or Servicemembers who have incurred or aggravated “a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder)…in the line of duty in the active military, naval, or air service on or after September 11, 2001.”  See 38 U.S.C. § 1720G(a)(2)(B).

VA supports the intent of this bill.  Expanding eligibility for VA’s Program of Comprehensive Assistance for Family Caregivers to include Veterans and Servicemembers with a serious illness would eliminate the need to distinguish illness from injury and establish a more equitable program.  Distinguishing between a Veteran or Servicemember who incurred or aggravated a serious injury in the line of duty from one who incurred or aggravated a serious illness is often a complex process since either individual may require the assistance of a caregiver.  The amendment proposed by this bill is supported by public comments received by VA in response to its interim final rule.  See Caregivers Program, 76 Fed. Reg. 26148 (May 5, 2011) (adding 38 C.F.R. Part 71). These comments requested that VA consider “illness” as one of the eligibility factors for VA’s Program of Comprehensive Assistance for Family Caregivers.  VA’s Office of General Counsel, however, concluded that the statutory language did not permit the addition of illness as criteria in regulations, and instead would require a statutory change.

The amendment would also align VA and the DoD Special Compensation for Assistance with Activities of Daily Living (SCAADL) program, authorized by section 603 of Public Law 111-84 (Oct. 28, 2010). Both SCAADL and VA’s Program of Comprehensive Assistance for Family Caregivers provide monetary benefits; SCAADL provides monetary compensation to eligible Servicemembers, whereas VA provides a stipend to primary Family Caregivers. SCAADL does not distinguish between illness and injury when determining eligibility compared to VA’s Program of Comprehensive Assistance for Family Caregivers, which limits eligibility to Veterans and Servicemembers who incurred or aggravated a “serious injury.” 38 U.S.C. § 1720G(a)(2)(B).  This amendment would help align the two programs’ eligibility requirements, since they both aim to serve Veterans and Servicemembers who require ongoing assistance with activities of daily living or need supervision or protection.

To implement this amendment, VA would need to define the term “serious illness” and solicit public feedback on this definition.  VA would also need to amend its interim final rule to include the new eligibility criteria.  The amendment would expand the population eligible for benefits and services under VA’s Program of Comprehensive Assistance for Family Caregivers.  An increase in the eligible population and the services and benefits that are provided to them would result in increased costs.  At present, VA has approximately 3,500 Veterans and Servicemembers who have family caregivers enrolled in VA’s Program of Comprehensive Assistance for Family Caregivers.  Based on this amendment, VA estimates that 870 additional Veterans and Servicemembers would qualify for services and benefits.  These benefits and services include:  a stipend available to primary family caregivers; VA health insurance available to eligible primary family caregivers; and respite care, mental health services, educational services, and beneficiary travel benefits available to family caregivers.

VA estimates the total cost for this bill would be $45 million during Fiscal Year (FY) 2013, $263.5 million over 5 years, and $649.5 million over 10 years.  VA does support the intent of this bill, because caregiver benefits indirectly support Veterans by providing assistance to their designated caregivers.  However, because of the cost of the expansion proposed under this bill, there could be a negative impact on access to medical care services for Veterans unless additional funding is provided.

H.R. 3337:     “Open Burn Pit Registry Act of 2011”

H.R. 3337 would require the Secretary of Veterans Affairs, not later than 180 days after enactment, to establish and maintain a registry for eligible individuals who may have been exposed to toxic chemicals and fumes caused by open burn pits.  The bill would define an “open burn pit” as an area of land located in Afghanistan or Iraq that the Secretary of Defense designates for use for the disposal of solid waste by means of burning in the outdoor air without the use of a commercially manufactured incinerator or other equipment specially designed and manufactured for the burning of solid waste.  It would define “eligible individual” as anyone who, on or after September 11, 2001, was deployed in support of a contingency operation while serving in the Armed Forces and who during such deployment was based or stationed at a location where an open burn pit was used. 

H.R. 3337 would also require the Secretary of VA to include in the registry any information that the Secretary deems necessary to ascertain and monitor the health effects of such exposure.  It also would require the Secretary to develop a public information campaign to inform eligible individuals about the registry and to periodically notify them of significant developments in the study and treatment of conditions associated with exposure to toxic chemicals and fumes from open burn pits.  Additionally, the Secretary would have to enter into an agreement with an independent scientific organization to report on the effectiveness of the Department’s actions to collect and maintain information on the health effects associated with this particular type of environmental exposure.  Specifically, the organization would be required to make recommendations on how the Department may improve its efforts (in collecting and maintaining registry information) and on the most effective and prudent means of addressing the medical needs of this cohort for conditions likely to result from their exposure to toxic chemicals and fumes from open burn pits.

Finally, H.R. 3337 would require the Secretary of VA to submit the scientific organization’s report to Congress not later than 18 months after establishment of the registry.

VA does not support H.R. 3337.  Special authority for such a registry is not required.  In carrying out the Department’s medical and research missions, the Secretary may already establish under existing authority any needed health registry.  Pursuant to section 703(b)(2) of Public Law 102-585 (1992), the Secretary may also provide, upon request, an examination, consultation, and counseling to any Veteran who is eligible for inclusion in any Department health registry.  H.R. 3337, therefore, duplicates existing authorities. 

We do not believe that a health registry is the appropriate epidemiological tool to use in identifying possible adverse health effects associated with certain environmental exposures.  Health registries by their nature can only produce very limited and possibly skewed results.  The major purpose of a registry is to enable medical follow-up and outreach efforts of those potentially exposed to an environmental hazard.  Studies of self-selected individuals, such as those in a registry, are not representative of an entire population of potentially exposed individuals; they may therefore lead to false associations as to cause of perceived or actual illnesses.  Indeed, for years, VA has maintained an Agent Orange health registry and a Gulf War health registry.  While useful for outreach purposes, neither of these registries has been useful in terms of researching the types of health concerns raised by these Veterans.  In addition to the issue of self-selection, there are other reasons why studies of registry populations are not useful, including exposure misclassification (self-reported but with no availability of data to support amount and time of exposure) and an inability to link to medical records to substantiate concerns about illnesses (not all registrants receive care from VA).  We also note the particular timeframes under the bill are far too short to produce scientifically valid evidence.

Instead, it would be more appropriate to conduct a comprehensive prospective study of the long-term adverse health effects associated with specified environmental exposures, including exposure to toxic chemicals and fumes from open burn pits that were experienced by the OEF/OIF/OND cohort.  Such a study would produce the most complete and representative information on possible adverse health effects associated with specified exposures.  We are currently developing cost estimates and data requirements for a large-scale study and defining the outcomes it would provide.  More importantly, VA and DoD are already engaged in several focused studies on health effects related to this cohort, including DoD’s Millennium Cohort Study and VA’s New Generation Study.  Both Departments are also working on establishing clinical protocols for evaluating Veterans with respiratory complaints after deployment. 

Finally, we note that combat-theater Veterans are eligible to enroll in VA health care up to 5 years after discharge or separation from service and receive free hospital care and medical services for conditions possibly related to their combat service.  Eligible Veterans may take advantage of their VA health care benefits to obtain any desired medical advice on this topic as well as any needed medical services.

VA estimates the total cost for H.R. 3337 would be $2.3 million during FY 2013, $6.2 million over 5 years, and $11.5 million over 10 years.

H.R. 3723      Enhanced Veteran Health Care Experience Act of 2011

H.R. 3723 would make various revisions to 38 U.S.C. 1703, which currently provides authority for VA to contract for certain types of health care for select Veterans when Department facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing the care or services required.  Specifically, this bill would require the Secretary to provide health care through contract providers if the Secretary determines that Department facilities are not capable of economically furnishing covered health services to a Veteran because of geographic inaccessibility or because such facilities lack the required personnel, resources, or ability.  This contract care would be available to all enrolled Veterans who elect to receive care under this authority.

With respect to standard acquisition practices, VA's existing authority, 38 U.S.C. 8153, to contract for health care resources from any health care provider or other entity or individual is sufficient.  In fact, VA has an acquisition initiative under way to develop broad-based nationwide and regional contracts with health care providers to enhance and expand VA’s ability to refer Veterans to qualified health care providers when VA is unable to furnish the required health care while helping to contain overall costs.  With regard to subsection (a)(2) of section 2 of the bill, addressing qualified providers and quality of care, VA currently includes these requirements in health care contracts.

For the reasons described above, VA does not support this legislation.  In addition, VA does not support H.R. 3723 because it would allow Veterans to elect to receive non-VA care under section 1703 as amended.  As outlined above, section 1703 currently allows VA to purchase non-VA health care for certain eligible Veterans when facilities are not capable of furnishing economical health care services because of geographical inaccessibility or such services are reasonably unavailable within VA.  Requests for non-VA care from a VA provider must document that the local VA does not provide the requested service and that the services requested are medically necessary within generally accepted standards of medical practice.  When such referral for non-VA services is received, local fee basis offices are required to verify geographic inaccessibility, availability of VA services (to include those of other VA medical centers), and eligibility for fee basis care.  VA is concerned that H.R. 3723 as written would eliminate this step and marginalize the definition of what is considered geographically inaccessible as a result of the Veterans ability to elect to receive care.    VA is still preparing cost estimates on this bill as written.  We will provide it as soon as it is available.

VA regulations implementing the current authority in section 1703 have long provided that “individual authorizations” may be used as a method of making infrequent purchases of necessary non-VA health care for eligible Veterans.  Individual authorizations provide the flexibility to purchase services necessary to a full continuum of care based on the patient’s condition, frequency of need, and quality of care issues which would otherwise be unavailable from VA without negotiating the purchase under formal contracting provisions.  VA, in its budget transmittal, summarized a proposal that will soon be transmitted to Congress to amend section 1703 to clarify that VA is not limited to formal contracting when purchasing health care services under this authority.  We note that price reasonableness would be ensured by continuing to utilize Medicare payment rates as the payment methodology for these purchases. 

VA would welcome the opportunity to work with the Subcommittee to enhance 38 U.S.C. 1703 and thereby improve VA's ability to deliver high quality health care and provide Veterans with a full continuum of health care, where standard acquisition practices are inadequate.

H.R. 4079      Safe Housing for Homeless Veterans Act

H.R.4079 would modify the Secretary’s current requirements for entities seeking grants or other assistance to provide housing or services to homeless Veterans using the Life Safety Code of the National Fire Protection Agency, applicable state and local housing codes, licensing requirements, fire and safety requirements, and any other jurisdictional requirements.

The proposed amendment requires that entities providing housing or services for homeless Veterans certify compliance with “the most current Life Safety Code and all applicable State and local housing codes, licensing requirements [and], fire and safety requirements” for the buildings where services or housing is being provided.  The proposed law would require that community partners are fire and safety code compliant before they are otherwise eligible to receive a grant, as well as require compliance with standards that may be above and beyond what is required by local law.  This new requirement could dramatically reduce the pool of eligible capital grantees and could even preclude entities seeking capital grants intended to fix fire and safety issues.  This would effectively mean severely limiting eligibility to existing providers with existing approved structures and could defeat the purpose of capital granting for new and existing community partners to make the necessary changes to provide services to Veterans.

The legislation appears to require meeting not only life safety requirements but it also outlines “any other requirements in the jurisdiction in which the project is located regarding the condition of the structure and the operation of the supportive housing or service center.”  This could be construed as requiring an applicant to have existing permits or licenses to provide services prior to being an eligible applicant for a capital grant. 

Furthermore, by amending subchapter I of chapter 20 of title 38, this legislation would apply to every specialized homeless program operated under chapter 20 of title 38, including the Supportive Services for Homeless Vets program found in 38 U.S.C. 2044, and could require mandatory housing code upgrades in existing structures even when Veterans are not cared for in these structures.  For example, under 38 U.S.C. 2044, VA provides grants to community partners to provide prevention and rapid re-housing services to homeless Veterans.  In general, community partners operating under these types of grants would use existing structures for the administration of services; Veterans are not “cared for” in these structures, but services are administered and provided out of these structures.  Certainly, these community partners would be expected to meet the necessary state and local housing codes, but in many cases, the Life Safety Code imposes much more rigorous requirements.  This legislation would likely require costly upgrades to meet the Life Safety Code.  In short, this legislation could impose onerous remodeling and upgrade costs on community partners’ administrative buildings even though the services they are providing are wholly unrelated to the conditions of the building the entity occupies.  

For the reasons stated above, we do not support this bill.  It has the potential to be unduly burdensome and therefore would undermine the original congressional intent to encourage new partners to provide services to Veterans. The proposed law could also have a chilling effect upon the entry of new providers into the market.  There are no Federal- level costs associated with this bill.

This concludes my prepared statement.  Thank you for the opportunity to testify before the Subcommittee.  I would be pleased to respond to any questions you or Members of the Subcommittee may have.