[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
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
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COMMITTEE ON VETERANS' AFFAIRS
BOB FILNER, California, Chairman
CORRINE BROWN, Florida STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South HENRY E. BROWN, Jr., South
Dakota Carolina
HARRY E. MITCHELL, Arizona JEFF MILLER, Florida
JOHN J. HALL, New York JOHN BOOZMAN, Arkansas
PHIL HARE, Illinois GINNY BROWN-WAITE, Florida
MICHAEL F. DOYLE, Pennsylvania MICHAEL R. TURNER, Ohio
SHELLEY BERKLEY, Nevada BRIAN P. BILBRAY, California
JOHN T. SALAZAR, Colorado DOUG LAMBORN, Colorado
CIRO D. RODRIGUEZ, Texas GUS M. BILIRAKIS, Florida
JOE DONNELLY, Indiana VERN BUCHANAN, Florida
JERRY McNERNEY, California STEVE SCALISE, Louisiana
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
Malcom A. Shorter, Staff Director
______
SUBCOMMITTEE ON HEALTH
MICHAEL H. MICHAUD, Maine, Chairman
CORRINE BROWN, Florida JEFF MILLER, Florida, Ranking
VIC SNYDER, Arkansas CLIFF STEARNS, Florida
PHIL HARE, Illinois JERRY MORAN, Kansas
MICHAEL F. DOYLE, Pennsylvania HENRY E. BROWN, Jr., South
SHELLEY BERKLEY, Nevada Carolina
JOHN T. SALAZAR, Colorado VACANT
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.
C O N T E N T S
__________
June 5, 2008
Page
Legislative Hearing on H.R. 4089, H.R. 4463, H.R. 5888, H.R.
6114, and H.R. 6122............................................ 1
OPENING STATEMENTS
Chairman Michael H. Michaud...................................... 1
Prepared statement of Chairman Michaud....................... 16
Hon. Jeff Miller, Ranking Republican Member, prepared statement
of............................................................. 16
WITNESSES
U.S. Department of Veterans Affairs, Gerald M. Cross, M.D.,
FAAFP, Principal Deputy Under Secretary for Health, Veterans
Health Administration.......................................... 9
Prepared statement of Dr. Cross.............................. 21
______
Doyle, Hon. Michael F., a Representative in Congress from the
State of Pennsylvania.......................................... 7
Prepared statement of Congressman Doyle...................... 17
Filner, Hon. Bob, Chairman, Committee on Veterans' Affairs, and a
Representative in Congress from the State of California........ 1
Prepared statement of Congressman Filner..................... 16
Walz, Hon. Timothy J., a Representative in Congress from the
State of Minnesota............................................. 5
Prepared statement of Congressman Walz....................... 18
SUBMISSIONS FOR THE RECORD
American Federation of Government Employees, AFL-CIO, statement.. 25
American Legion, Joseph L. Wilson, Deputy Director, Veterans
Affairs and Rehabilitation Commission, statement............... 29
American Veterans (AMVETS), Raymond C. Kelley, National
Legislative Director, statement................................ 31
Costello, Hon. Jerry F., a Representative in Congress from the
State of Illinois, statement................................... 32
Disabled American Veterans, Joy J. Ilem, Assistant National
Legislative Director, statement................................ 33
National Association of Government Employees, SEIU/NAGE Local
5000, David J. Holway, National President, statement........... 36
National Federation of Federal Employees, Patricia LaSala, First
Vice President, statement...................................... 37
Pain Care Coalition, Richard Rosenquist, M.D., Chair, letter and
attachment..................................................... 38
Paralyzed Veterans of America, statement......................... 42
Veterans of Foreign Wars of the United States, Dennis M.
Cullinan, Director, National Legislative Service, statement.... 43
MATERIAL SUBMITTED FOR THE RECORD
Follow-Up Information and Post-Hearing Questions and Responses
for the Record from VA:
Hon. Jonathan B. Perlin, M.D., Ph.D., MSHA, FACP, Under Secretary
for Health, U.S. Department of Veterans Affairs, Information
Letter entitled, ``Need for Routine Human Immunodeficiency
Virus (HIV) Risk Assessment and Testing,'' dated September 2,
2005........................................................... 46
Hon. Jeff Miller, Ranking Republican Member, Subcommittee on
Health, Committee on Veterans' Affairs, to Hon. James E. Peake,
Secretary, U.S. Department of Veterans Affairs, letter dated
August 27, 2008, and VA responses.............................. 48
LEGISLATIVE HEARING ON H.R. 4089, H.R. 4463
H.R. 5888, H.R. 6114, AND H.R. 6112
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THURSDAY, JUNE 5, 2008
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Health,
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 prepared statement of Chairman Michaud appears on
p. 16.]
STATEMENTS OF HON. BOB FILNER, CHAIRMAN, COMMITTEE ON VETERANS'
AFFAIRS, AND A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
CALIFORNIA; HON. TIMOTHY J. WALZ, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MINNESOTA; AND HON. MICHAEL F. DOYLE, A
REPRESEN- TATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
STATEMENT OF HON. BOB FILNER
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 5 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 prepared statement of Congressman Filner appears on p.
16.]
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 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 2 weeks ago, the Nurses Association----
Mr. Filner. I have 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 toward 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 prepared statement of Congressman Walz, and the
attached Pain Care Coalition letter of support, appear on page
18.]
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 prepared statement of Congressman Doyle appears on
p. 17.]
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 last, 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 prepared statement of Dr. Cross appears on p. 21.]
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 followup 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 on p. 47.]
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.]
A P P E N D I X
----------
Prepared Statement of Hon. Michael H. Michaud,
Chairman, Subcommittee on Health
I would like to thank everyone for coming today.
Today's legislative hearing is an opportunity for Members of
Congress, veterans, the 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 process.
I do not necessarily agree or disagree with the bills before us
today, but I believe that this is an important part of the legislative
process that will encourage frank discussions and new ideas.
We have five bills before us today.
I look forward to hearing the views of our witnesses on these bills
before us.
I also look forward to working with everyone here to improve the
quality of care available to our veterans.
Prepared Statement of Hon. Jeff Miller,
Ranking Republican Member, Subcommittee on Health
Thank you, Mr. Chairman.
I appreciate your holding this legislative hearing to review five
bills that have been referred to our Subcommittee.
I know we have a lot to cover this morning, so I will be brief with
my opening remarks.
Clearly all of the bills we will discuss were introduced with the
best intentions and have potential value. However, I am concerned that
several of the legislative proposals contain provisions that are less
than optimal and could unintentionally create more issues than they
seek to resolve.
This hearing is an excellent opportunity to focus on specific
issues, and I will have some questions on a few of the bills.
Addressing the concerns of all the Members of this Subcommittee will
allow us an important chance to continue improving the delivery of the
very best health care possible to our veterans.
I look forward to hearing from our colleagues and the other
witnesses and engaging in a thoughtful dialog about these important
initiatives.
Thank you Mr. Chairman and I yield back.
Prepared Statement of Hon. Bob Filner, Chairman,
Full Committee on Veterans' Affairs, and
a Representative in Congress from the State of California
Statement on H.R. 4089
In 1991, Congress passed legislation to provide VA health care
professionals such as registered nurses, physicians, physician
assistants, dentists, podiatrists and optometrists with essentially the
same labor rights held by other federal employees under Title 5. Under
this law, VA health care professionals are able to negotiate, file
grievances and arbitrate disputes over working conditions.
This law makes an exception for disputes arising from issues such
as direct patient care and clinical competence, 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 agencies.
Health care professionals have complained that VA is interpreting
these narrow exceptions in the law very broadly, and consequently is
negatively impacting areas such as schedules and floating assignments
for nurses and retention allowances for physicians.
From a broader perspective, these labor issues may be adversely
impacting VA's ability to recruit and retain high quality health care
professionals, particularly nurses. Almost 22,000 of the RNs caring for
our veterans will be eligible to retire by 2010 while 77% of all RN
resignations occur within the first five years.
I introduced H.R. 4089 to address these important labor issues.
H.R. 4089 amends 38 USC, Section 7422 and repeals the three
exceptions to the rights of VA health care 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
arbitrator, in the U.S. Court of Appeals for the Federal Circuit.
I appreciate the comments from the witnesses today. I look forward
to working with the VA, my colleagues and interested stakeholders to
ensure that VA health care professionals are afforded the appropriate
collective bargaining rights. I hope that this will ultimately lead to
improved recruitment and retention of health care providers within the
Department.
Thank you and I would be happy to answer any questions you may have
regarding H.R. 4089.
Statement on H.R. 5888
On October 9, 2007, Stephen Brady, a 60% service connected veteran,
was in a serious motorcycle accident. Following his accident, Stephen
was transported to a non-VA medical facility for emergency care. 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 his medical care.
The law in its current form does not allow the VA to pay for
emergency treatment for non-service connected conditions in non-
Department facilities if a veteran has third party insurance that pays
for any portion, either in full or in part, 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 unfair policy has caused many veterans undue
stress and has placed them in unnecessary financial hardship.
H.R. 5888 eliminates this inequity in the law 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 any portion of their care.
I appreciate the comments from the witnesses today. I look forward
to working with the VA, my colleagues and interested stakeholders to
ensure that what happened to Stephen Brady does not happen to other
veterans.
Thank you and I would be happy to answer any questions you may have
regarding H.R. 5888.
Prepared Statement of Michael F. Doyle,
a Representative in Congress from the State of Pennsylvania
Thank you, Chairman Filner, Chairman Michaud, 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, to correct an anachronism in our veterans' health care
laws.
Congress does not often step in and tell the Veterans
Administration how to diagnose and treat patients in the system. I
think we can all agree that this is wise. However, in 1988, Congress
passed a law that requires the Veterans Administration to obtain a
patient's written consent before being tested for HIV, the virus that
causes AIDS.
While that might have been a best practice in 1988, it is now
outdated and must be repealed.
According to the VA's Public Health Strategic Working Group, 55% of
HIV positive veterans had already suffered significant damage to their
immune system AIDS by the time they're diagnosed as HIV positive. Those
veterans had been to the VA to get medical care an average of 6 times
prior to diagnosis.
That same panel says that 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. That is
unacceptable to me, and should be to anyone else who cares about
public's health, and the wellbeing of our veterans.
The face of a person with HIV/AIDS has also changed since 1988.
Today, 53% of VA patients have a risk factor indicating a higher
prevalence of HIV, but only 35% 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 released guidelines that
recommend that HIV testing become a normal part of medical care when
appropriate. After reviewing all 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 as to how the VA should proceed after the current
regulations are repealed. The VA has pledged to follow the CDC's
guidelines and to 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 for the VFW and AMVETS's strong support for the
SUNSET Act. I would also like to offer letters of support from AIDS
Action, the AIDS Institute and OraSure for the record. Finally, I would
like to thank the Committee's 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 this Committee and passed without delay.
Thank you.
Prepared Statement of Hon. Timothy J. Walz,
a Representative in Congress from the State of Minnesota
Chairman, Ranking member, members of the Subcommittee, thank you. I
am here today to testify about H.R. 6122, the Veterans Pain Care Act of
2008, which I introduced on May 21, 2008. This bill requires the
Secretary of the VA to develop and implement a comprehensive policy on
pain management for veterans enrolled in the VA health care system and
to carry out a program of research, training and education on acute and
chronic pain.
Pain is a leading cause of disability among veterans. Modern
warfare also often leads to serious but survivable injuries to the
central nervous system. And while advances in medical technology have
saved the lives of many wounded soldiers, many veterans of our Armed
Forces are afflicted by acute and chronic pain. As a result, providing
adequate pain management is a crucial component of improving veteran
health care.
VA recognizes that chronic and acute pain among our veterans is a
serious problem, and I applaud VA's existing pain care programs. But
comprehensive pain care is not consistently provided on a uniform basis
throughout the VA's health care system. My legislation will give VA the
necessary tools to serve the needs of our veterans, building on the
work VA is already doing. By also making clear that Congress considers
pain care a priority, and putting it in law, VA's pain care programs
will be less subject to the winds of politics and its unpredictability.
At the same time, the bill is not duplicative of the efforts VA is
making-- though by building on what VA is already doing means that my
bill should not be expensive nor cumbersome. It will not be cumbersome
especially since the bill is not overly prescriptive either--a concern
with earlier versions of the bill but which I believe has been
rectified in the version before you.
On that note, I have made a special effort to make my bill
virtually identical to a bill in the Senate that was reworked in
cooperation with the minority and now has the support of both the
Chairman and the Ranking member on the Senate Veterans Affairs
Committee. This bill, rolled into a larger bill, just passed the Senate
by unanimous consent on Tuesday. I am hopeful that my bill, which also
has bipartisan support, will move quickly through Congress and become
law.
This bill is also part of an effort to provide pain care for our
service members across their careers, and nicely complements a
companion measure on pain care among the military which was originally
introduced by Congressman Loebsack and has now passed the House as part
of the National Defense Authorization Act for FY2009. In this way, the
two bills will help provide that seamless transition for our service
members that we know is so important.
This bill has the support of a broad coalition of groups who are
involved in pain care management, including the Pain Care Coalition and
the American Pain Foundation.
I am also very pleased that a number of Veterans Service
Organizations are here today to express their support for the bill.
There is also a role for them in the implementation of this bill, as VA
will work with veterans service organizations and other experts in pain
management to continually improve its comprehensive pain care policy.
There is also an oversight mechanism, so that Congress has a role in
ensuring that this happens: the VA is required to report regularly to
Congress on the progress it is making in implementing and improving its
pain management policy.
With these oversight mechanisms, and by directing VA to update its
pain management policy in light of experience and evolving best
practices as well as to carry out a research component, the ultimate
aim of the bill is to lay a foundation for the ongoing improvement in
pain care treatment of our veterans and, in combination with the
companion military bill, for our service members across their careers.
In that way, we can work towards fulfilling what I believe is a moral
obligation to care for these veterans with the most innovative pain
management techniques, so that they can have the highest quality of
life possible.
I urge you to support our veterans by supporting this bill. Thank
you.
__________
Pain Care Coalition
Washington, DC.
May 15, 2008
Pain Care Coalition--A National Coalition for Responsible Pain Care
American Academy of Pain Medicine, American Headache Society,
American Pain Society, American Society of Anesthesiologists
The Honorable Tim Walz
1529 Longworth House Office Building
Washington, D.C. 20515
Dear Congressman Walz,
Re: Veterans Pain Care Act of 2008
The Pain Care Coalition applauds your leadership in championing the
Veterans Pain Care Act. We enthusiastically support the measure, and
pledge the assistance of our organizations as you move the bill forward
in the House. As your bill mirrors bi-partisan legislation under
consideration in the Senate, and complements a DoD pain care initiative
included in the House FY 2009 Defense Authorization bill, we are
optimistic that it will receive wide support.
Pain is a huge public health problem for veterans. Virtually every
service member injured in current and past conflicts experienced acute
pain at the time of injury. Many others suffered acute pain in
connection with non-combat related injury or disease. For too many, the
acute pain progresses to a chronic pain condition that threatens the
veteran's basic quality of life. These same chronic pain conditions can
be cost ``drivers'' in VA health and disability systems. With prompt
and aggressive treatment, much acute pain can be alleviated, and much
chronic pain avoided or managed.
The Department of Veterans Affairs is doing much to provide good
pain care and advance important pain research, but much, much more
remains to be done. Your bill will make pain care a national priority
within the VA health care programs. Millions of veterans who have
served our country deserve no less.
Respectfully submitted,
Richard Rosenquist, M.D.
Chair
__________
Consensus Statement Supporting the Congressional Military Pain Bill and
the Veterans Pain Bill
Acute and chronic pain afflicts both military personnel and
veterans in proportions far exceeding the general population. Pain is
the leading cause of disability among veterans. Characteristics of
modern warfare produce serious, but survivable, injuries to the central
and peripheral nervous systems that inflict terrible acute pain and
lead to chronic pain in many cases. Providing adequate pain management
is a crucial component to improving military and veteran health care. A
growing number of wounded veterans are experiencing long-term problems
with chronic pain; left untreated, pain can have lifelong consequences.
As members of organizations dedicated to improving the lives of
veterans and military personnel and organizations dedicated to
improving the quality of pain management, the undersigned organizations
support and urge passage of legislation to improve pain care for active
duty military and veterans. In particular we support legislation which:
Requires Uniformed Service Secretaries to implement a
comprehensive pain care initiative to require prompt assessment and
reassessment of pain in all health setting; emphasizes assessment,
diagnosis, treatment & management of pain as an integral part of
military health care; and deploys acute pain services to all combat
support hospitals and, where feasible, on the battlefield.
Requires Tricare plans to provide pain care services that
ensure appropriate assessment, diagnosis, treatment and management of
acute and chronic pain and provide comprehensive interdisciplinary
services for hard to treat chronic pain patients.
Requires the Department of Veterans Affairs to implement
in VA health facilities and programs a pain care initiative comparable
to that required for DoD programs.
Requires the VA to increase its research effort in the
areas of acute and chronic pain, including identifying priority
research areas most relevant to veterans.
Requires the VA to emphasize education and training of VA
personnel in pain management.
Establishes cooperative research center for acute and
chronic pain, including one with a special focus on central and
peripheral nervous system damage.
Directs the GAO to evaluate the consistency of military
and veteran pain care services across different programs, facilities,
demographic groups and geographic areas; and
Assesses the adequacy and appropriateness of pain care
services based on performance measures previously adopted by the VA.
Signed,
Air Compassion for Veterans
Alliance of State Pain Initiatives
Alpharma Pharmaceuticals LLC
American Academy of Pain Medicine
American Association of Diabetes Educators
American Cancer Society
American RSDHope
Ava Mina Pain Clinic
The American Chronic Pain Association
American Headache Society
American Pain Foundation
American Pain Society
American Pharmacists Association
American Society of Anesthesiologists
American Society for Pain Management Nursing
Amputee Coalition of America
AVANCEN LLC
Boston Scientific
Brave New Foundation
Cause
Cephalon, Inc.
Comfort Care Unlimited
Coming Home Project
Endo Pharmaceuticals
Florida Pain Initiative
HealthSouth Valley of the Sun Rehabilitation Hospital
Homes for Our Troops
Jacob's Light Foundation, Inc.
Indiana Hospice and Palliative Care Organization
Indiana Pain Initiative
Iraq and Afghanistan Veterans of America
Medtronic, Inc.
Michigan Cancer Pain Initiative
Missouri Pain Initiative
Montana Cancer Control Coalition
National Fibromyalgia Research Association
National Pain Foundation
National Veterans Legal Services Program
National Vulvodynia Association
One Freedom, Inc.
Operation Helmet
Operation Home Front
Pain Care Coalition
Pain Connection
Pain Treatment Topics
P.A.N.D.O.R.A.
Project Return to Work, Inc.
Purdue Pharma L.P.
Reflex Sympathetic Dystrophy Syndrome Association
South Dakota Injured Workers Coalition
St. Jude Medical's Neuromodulation Division Advanced Neuromodulation
Systems
Swords to Plowshares
The Pathway Home (Veterans Home of California)
There is Hope . . . for Chronic Pain
Veterans for America
Washington-Alaska Pain Initiative
Prepared Statement of Gerald M. Cross, M.D., FAAFP,
Principal Deputy Under Secretary for Health,
Veterans Health Administration, U.S. Department of Veterans Affairs
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 non-board 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.
Statement of American Federation of Government Employees, AFL-CIO
Mr. Chairman and Members of the Subcommittee:
The American Federation of Government Employees (AFGE) appreciates
the opportunity to submit a statement for the record on H.R. 4089 and
other bills under consideration today. AFGE represents nearly 160,000
employees in the Department of Veterans Affairs (VA), more than two-
thirds of whom are Veterans Health Administration (VHA) professionals
on the frontlines treating the physical and mental health needs of our
veteran population.
H.R. 4089
H.R. 4089 would clarify that ``pure Title 38'' providers
(hereinafter ``providers''), i.e., registered nurses (RN), physicians,
physician assistants, dentists, chiropractors, optometrists,
podiatrists and expanded-duty dental auxiliaries, have the same rights
as other health care professionals working at the VA, military
hospitals and other federal government facilities, specifically:
Collective bargaining rights: Section 1 would clarify
that these providers have equal rights to challenge management
personnel actions through grievances, arbitrations, labor-management
negotiations, unfair labor practices (ULPs) and litigation before the
Federal Labor Relations Authority (FLRA) and courts.
Judicial review: Section 2 would clarify that these
providers have the right to appeal to federal court the final decision
of a labor arbitrator or the Department with respect to review of an
adverse action.
Disciplinary Appeals Board (DAB): Section 3 would clarify
the right of these providers to a full and correct copy of the hearing
transcript in advance of the deadline for submitting post-hearing
briefs, in administrative appeals of major adverse actions involving
professional conduct or competence under 38 USC Sec. 7462.
H.R. 4089 is an essential enforcement tool for past and future VHA
recruitment and retention legislation. Section 1 would close a harmful
loophole in 38 USC Sec. 7422 (``7422'') that the VA has repeatedly used
to undermine Congressional intent. More specifically, VA management at
the national and local levels regularly invoke the three exclusions to
bargaining in section 7422 to block virtually every provider grievance
over conditions of employment: professional conduct and competence
(defined as direct patient care or clinical competence); peer review;
and compensation.
The VA's Assertion That H.R. 4089 Will Interfere With Management's
Title 5 Rights to Carry Out its Mission is Unfounded
The VA contends that amending section 7422 would interfere with the
agency's mission to serve the needs of our nation's veterans, by
requiring the Secretary to bargain over direct patient care, clinical
competency and discretionary aspects of Title 38 compensation.
Yet, the VA does not, and cannot, point to a single attempt by
employees or their representatives to interfere with medical
procedures, the assessment of clinical skills or pay scales set by the
agency.
Even if there was such an attempt, Title 5 already protects against
such interference in VA health care settings. More specifically,
section 7106(a) of Title 5 clearly makes an agency's determination of
its mission and organization a ``management right'' not to be affected
by the grievance or arbitration process. In contrast, Section
7103(a)(14) of Title 5 describes matters that can be modified at the
bargaining table (or grieved) as ``conditions of employment''. In other
words, Title 5 management rights render the exclusion language in
section 7422 redundant and unnecessary.
A review of decisions by the Federal Labor Relations Authority
makes clear that if section 7422 were amended to repeal the current
exclusions to bargaining, labor would still be prohibited from
negotiating with the agency on how it fulfills its mission, i.e.,
caring for veterans.\1\ If the union cannot require negotiations on
even ``when'' services are to be provided to the public for ``mission''
reasons, it follows that a union lacks the right, under Title 5
provisions, to force discussion on the substance of what care is
provided to its public.
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\1\ See Department of the Air Force, Lowry AFB, Colo., 16 FLRA
1104, 1004-05 (1984) (hours that a base commissary will be open not
subject to an agency's duty to bargain for mission reasons); AFGE Local
3231 and SSA, 22 FLRA 868, 869-70 (1986) (bargaining proposal seeking
to establish hours that SSA district office is open to the public is
outside the agency's statutory duty to bargain under the ``mission''
management right); West Point Elementary School Teachers Ass'n, NEA and
U.S. Military Academy Elementary School, West Point, N.Y, 29 FLRA 1531,
1536-38 (1987) (bargaining proposal on what dates shall constitute the
school calendar outside the agency's duty to bargain under the
``mission'' management right because it determined the days on which
children will attend school); Fort Bragg Ass'n of Educators, NEA and
Dep't of the Army, Fort Bragg Schools, 30 FLRA 508, 516-17 (1987)
(bargaining proposal on what times on each day a school shall be open
found to be outside the agency's duty to bargain under the ``mission''
management right because it determined the times of the day at which
children will attend school); National Labor Relations Board Union
Local 21 and NLRB, Washington, D.C., 36 FLRA 853, 857-58 (1990)
(bargaining proposal seeking to establish hours that an NLRB office is
open to the public is outside the agency's statutory duty to bargain
under the ``mission'' management right). See also U.S. Immigration and
Naturalization Service and AFGE Local 1917, 20 FLRA 391 (1985)
(``INS'') (holding section 7106(a) may serve to bar a remedy ordered by
an arbitrator that impermissibly infringes on the agency's right to
determine mission.)
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VA's 7422 Policy Undermines Congressional Efforts to Improve
Recruitment Retention
VA's 7422 policy has severely weakened legislation that Congress
passed in recent years to recruit and retain a strong health care
workforce:
VA's 7422 policy weakens recruitment and retention
legislation on nurse locality pay: Congress enacted legislation in 2000
to authorize directors to conduct third party surveys to set
competitive nurse pay (P.L. 106-419). The Undersecretary of Health
(USH) has ruled that the ``compensation'' exception blocks employees'
access to third party survey data. (Decision dated 1/06/05.)
VA's 7422 policy weakens recruitment and retention
legislation limiting mandatory nurse overtime: Congress enacted
legislation in 2004 to require facilities to establish policies
limiting mandatory overtime except in cases of ``emergency'' (P.L. 108-
445). The USH ruled that an AFGE national grievance over the definition
of ``emergency'' is barred by the ``professional conduct or
competence'' exception. (Decision dated 10/22/07.)
VA's 7422 policy weakens recruitment and retention
legislation on physician market and performance pay: Congress enacted
legislation in 2004 to use local panels of physicians to set market pay
that would be competitive with local markets (P.L. 108-445). The USH
ruled that AFGE's national grievance over the composition of the pay
panels was barred by the ``compensation'' exception. (Decision dated 3/
2/07). (Local management in many facilities also asserted 7422 to block
challenges to pay panel grievances.) Similarly, with regard to
performance pay provisions in the 2004 law, VA physicians across the
nation are unable to challenge management policies that set arbitrarily
low bonuses and impose unfair performance measures based on factors
beyond the physicians' control. Local management also regularly asserts
7422 to deny physicians' requests to have input into development of
performance criteria.
VA's 7422 policy weakens recruitment and retention
legislation on nurse alternative work schedules: Congress enacted
legislation in 2004 to authorize facility directors to offer full-time
pay for three 12-hour work days, to become competitive with the private
sector. The USH has ruled that disputes over compressed work schedules
and alternative work schedules are barred by the ``patient care''
exception. (For example, see decisions dated 10/11/05, 8/22/05 and 3/
15/05.)
VA's 7422 Policy Undermines Other Statutory Rights
Since the VA does not inform AFGE of pending cases or unpublished
decisions, we are only aware of a portion of all 7422 decisions made at
the USH level or below. The following are examples of other cases where
the VA also invoked 7422 in ways that undermined important rights
established by Congress:
No right to challenge performance rating based on use of
approved leave: Management invoked 7422 when a nurse tried to grieve
the lowering of her performance rating that was based on her authorized
absences using earned sick leave and annual leave. Management's actions
were carried out without any written justification.
No right to challenge error in pay computation:
Management invoked 7422 when a nurse was incorrectly denied a statutory
within-grade pay increase because she lost work time due to a work-
related injury covered by workers compensation.
No right to pursue grievance alleging employment
discrimination:
In a case involving a VA physician who lost his
surgical privileges and specialty pay, a federal appeal court upheld
the barring of his grievance alleging unlawful age and gender
discrimination on the basis of the ``professional conduct or
competence'' exception in 7422. The union had contended that
management's 7422 assertion was a mere pretext for unlawful
discrimination. AFGE Local 2152 v. Principi, 464 F.3d 1049 (9th Cir.
2006).
A nurse who alleged that management's denial of
specialized skills pay to her was racially motivated was not allowed to
pursue a grievance. (USH decision dated 6/1/07).
VA's 7422 Policy Contradicts Congressional Intent to Provide Full
Collective Bargaining Rights to Title 38 Providers
When Congress enacted the Civil Service Reform Act (CSRA) in 1978,
it viewed Title 38 and Title 5 employees as having the same collective
bargaining rights.
A decade later, in a decision involving annual nurse
``comparability pay'' increases, the U.S. Court of Appeals for the D.C.
Circuit held that the VA could not be compelled by the CSRA to engage
in collective bargaining over conditions of employment for Title 38
providers. Colorado Nurses Ass'n v. FLRA, 851 F.2d 1486 (D.C. Cir.
1988).
Congress enacted section 7422 three years later in direct response
to the court's ruling. The 1990 House Committee report on the
underlying bill defined the ``direct patient care'' exception as
``medical procedures physicians follow in treating patients.'' This
report also cited guidelines for RNs wishing to trade vacation days as
falling outside the exception. (H. Rep. No. 101-466 on H.R. 4557,101st
Cong., 2d Sess., 29 (1990)).
The plain language of section 7422 confirms Congress' intent to
give these providers broad rights to challenge management personnel
actions (as opposed to medical procedures) through the negotiated
grievance process, by specifying that nongrievable matters relate to
``direct patient care'' or ``clinical competence.''
VA's 7422 Policy is Unsound and Inconsistent
VA Title 38 policy is inconsistent with the rights of other VA and DoD
providers.
The VA is using section 7422 to block routine grievances over
conditions of employment by Title 38 providers that are regularly filed
by other federal employees, including employees at VA medical
facilities. These inconsistencies are harmful to recruitment and
retention, and administration of hospital affairs. For example:
A VA psychologist has more grievance rights than a VA
psychiatrist.
A VA Licensed Practical Nurse has more grievance rights
than a VA Registered Nurse.
A physician treating active duty personnel at Walter Reed
has more grievance rights than a physician treating veterans at the VA.
Federal employees working in health care settings use their
collective bargaining rights every day without disrupting patient care.
As already discussed, Title 5 safeguards against the improper use of
grievance rights by Title 38 and Title 5 employees.
Section 7422 is invoked in an inconsistent manner.
At the national level, VA's application of the law is inconsistent
and unsupported. For example:
The VA is currently negotiating with AFGE over
reimbursement of physician continuing medical education expenses but
refused to negotiate over the composition of pay panels to set
physician market pay.
The VA negotiated a Memorandum of Understanding with AFGE
over the role of the Clinical Nurse leader. Yet the VA refused to
negotiate over the right of a union local to have input into the
drafting of medical staff bylaws that impact personnel policies.
Inconsistency is rampant at the local level. Human resources
personnel regularly make unauthorized 7422 decisions instead of seeking
a proper USH ruling, and without adequate legal oversight. It is also
common practice for local management to threaten to invoke 7422 in
order to discourage employees from using their grievance rights, rather
than seek an USH ruling.
Current VA policy contradicts its own past policy on 7422.
In 1996, the VA and labor unions entered into a detailed agreement
regarding the scope of 7422's exceptions. Sadly, the VA unilaterally
abandoned this useful, inclusive agreement seven years later as well as
its commitment to resolve labor-management disputes in a less
adversarial manner. For example, in that agreement:
The VA recognized the narrow scope of the direct patient
care exception, i.e., it does not extend to ``many matters affecting
the working conditions of Title 38 employees [that] affect patient care
only indirectly'' (emphasis provided).
The VA agreed that pay matters other than setting pay
scales are grievable: ``Under Title 38, pay scales are set by the
agency, outside of collective bargaining and arbitration. Left within
the scope of bargaining and arbitrations over such matters as:
procedures for collecting and analyzing data used in determining
scales, alleged failures to pay in accordance with the applicable
scale, rules for earning overtime and for earning and using
compensatory time, and alternative work schedules.''
The VA agreed that scheduling matters may be grievable:
``For example, scheduling shifts substantially in advance so that
employees can plan family and civic activities may make it more
expensive to meet patient care standards under certain circumstances.
That does not relieve management of either the responsibility to assure
proper patient care or to bargain over employee working conditions.''
The VA acknowledged that providers provide valuable input
into medical affairs: ``We recognize that the employees have a deep
stake in the quality and efficiency of the work performed by the
agency.''; ``The purpose of labor-management partnership is to get the
front line employees directly involved in identifying problems and
crafting solutions to better serve the agency's customers and
mission.''
The VA's 7422 Review Process is Biased in Favor of Management
The VA recently testified that the current restriction on
collective bargaining rights is a ``sound compromise'' between the VA's
mission and the interest of Title 38 providers. Compromise? Management
wins almost all the time: of all USH posted decisions since December
2001, 94% were in favor of management.
It is interesting to note that shortly after this Subcommittee's
May 22nd hearing, VA issued its first USH ruling in favor of the
employee since December 2004.
Current 7422 Policy Limits the VA's Accountability to Congress,
Taxpayers and Veterans
When the VA perpetually invokes 7422 in matters such as nurse
scheduling and assignment, it does not have to answer for chronic short
staffing, which in turn leads to costly contract care, longer patient
waiting lists and diversion to non-VA hospitals.
For example, in one nurse alternative work schedule (AWS) case that
went before the USH, the hospital ward staff was continuously
``scheduled'' to be shorted of coverage a minimum of 4 hours at least 3
days a week. In a reassignment case, the employee experienced
retaliation for requesting orientation.
Similarly, VA uses 7422 to avoid being held accountable for
noncompliance with physician pay laws, which makes it more difficult to
hire physicians in scarce supply. For example, an orthopedic surgeon
was entitled by VA regulations to a $15,000 increase in his market pay.
He was notified of this raise six months ago but he has still not
received his pay increase.
The VA's use of 7422 to block grievances relating to mandatory
nurse overtime prevents ward nurses from challenging work schedules
that are unsafe for patients.
H.R. 4463
AFGE has no specific position on this legislation.
H.R. 5888
AFGE supports H.R. 5888. This bill will enable veterans with
partial coverage from a private insurer, including veterans with very
limited private coverage, to receive reimbursement from the VA for
emergency care provided at a non-VA facility. This bill will also
assist veterans recently denied reimbursement due to current
restrictions in the law.
H.R. 6114
AFGE has no specific position on this legislation.
H.R. 6122
AFGE supports H.R. 6122. Chronic pain is a leading cause of
disability among veterans. Pain management is an essential component of
quality health care. This bill will ensure that VA facilities across
the country have the resources to improve and expand their pain care
services.
Thank you.
Statement of Joseph L. Wilson, Deputy Director,
Veterans Affairs and Rehabilitation Commission, American Legion
Mr. Chairman and Members of the Subcommittee:
Thank you for this opportunity to submit The American Legion's
views on these various pieces of legislation: H.R. 4089, H.R. 4463,
H.R. 5888, H.R. 6114, and H.R. 6122.
H.R. 4089
This bill seeks to amend title 38, United States Code, to improve
the collective bargaining rights and procedures for review of adverse
actions of certain employees of the Department of Veterans Affairs
(VA), and for other purposes.
The American Legion has no position on this bill.
H.R. 4463
This bill seeks to amend title 38, United States Code, to improve
the quality of care provided to veterans in VA medical facilities, to
encourage highly qualified doctors to serve in hard-to-fill positions
in such medical facilities, and for other purposes.
The American Legion believes medical school affiliations have been
a major factor in VA's ability to recruit and retain high quality
physicians, and provide veterans access to the most advanced medical
technology. When implementing this bill, The American Legion encourages
VA to continue to strengthen its affiliation with surrounding medical
schools in order to recruit and retain highly qualified doctors who are
accustomed to the VA medical care environment.
The American Legion also believes VA should offer incentives to new
hires and employees who maintain certifications or continue training in
areas above and beyond hospital credentialing and privileging
processes. The American Legion supports the Veterans Health Care
Quality Improvement Act.
H.R. 5888
This bill seeks to expand veteran eligibility for reimbursement by
the Secretary of VA for emergency treatment furnished in a non-
Department facility.
The American Legion believes it is essential for veterans to
receive emergency medical care from non-VA facilities in the absence of
available VA health care, or when traveling presents a hazard or
hardship for the veteran in accessing care. The American Legion
supports the reimbursement of costs incurred by veterans who must
receive emergency care at a non-VA facility
H.R. 6114
This bill seeks to simplify and update national standards to
encourage testing for the Human Immunodeficiency Virus of 2008.
The American Legion has no position on this bill.
H.R. 6122
This bill seeks to direct the VA Secretary to develop and implement
a comprehensive policy on the management of pain experienced by
veterans enrolled for health care services provided by VA, and for
other purposes.
Section 2 proposes the development and implementation of a
comprehensive policy on the management of pain experienced by veterans
enrolled for health care services provided by VA.
This policy will cover various issues to include:
VA's programs on research related to acute and chronic
pain suffered by veterans, as well as pain attributable to central and
peripheral nervous system damage characteristic of injuries incurred in
modern warfare;
The assurance of prompt and appropriate pain care
treatment and management by VA, system wide, when medically necessary;
Consistent application of pain assessments to be used
throughout VA;
Pain care education and training for VA's health care
personnel; and
Patient education for veterans suffering from acute or
chronic pain and their families.
To ensure every veteran who suffers from some form of pain receives
adequate and seamless treatment and care, The American Legion
recommends the continued collaboration between the Department of
Defense (DoD) and VA coupled with their increase of education,
research, treatment, and therapy best practices by improving
accelerating clinical trials at military and VA treatment facilities
and affiliated medical centers and research programs.
Additionally, The American Legion urges Congress to increase
Federal funding for pain management research, treatment, and ongoing
therapies to ensure the success of such programs.
Conclusion
Mr. Chairman and Members of the Subcommittee, The American Legion
sincerely appreciates the opportunity to submit testimony and looks
forward to working with you and your colleagues on these very important
issues. Thank you.
Statement of Raymond C. Kelley,
National Legislative Director, American Veterans (AMVETS)
Chairman Michaud, Ranking Member Miller, thank you for holding this
important hearing today. AMVETS is pleased to provide our views on
pending health care legislation.
AMVETS opposes amending section 7422 by removing subsections (b),
(c) and (d) that is outlined in H.R. 4089. Allowing VA employees who
are directly involved in patient care to have collective bargaining
rights could have direct negative impact on the care our veterans
receive. Patient care managers need to have the authority to make
decisions on clinical competence and the flexibility to arrange his/her
staff in a way that will benefit the veterans who are receiving care
the most.
Allowing collective bargaining will undoubtedly remove the
authority of those who are tasked with managing the highest level of
care of our veterans. Clinical care issues are often very fluid and
decisions on staffing needs or the quality of care that is provided to
the patient cannot be tied up in protracted collective bargaining
hearings. Even if the bargaining process is only two months long the
quality of care our veterans receive could be impeded.
H.R. 4463 provides provisions that will enhance recruitment for
hard-to-fill positions within VA, as well as ensure that during the
recruitment process that only the best qualified doctors are hired.
AMVETS supports this legislation. When veterans welfare is at stake,
verifying work history and understanding the career history of a
potential employee is vital. Practicing medicine is a high-risk
profession and VA needs to have every tool necessary to ensure they
hire the best qualified so the care our veterans receive will continue
to be the highest quality.
H.R. 5888 expands veteran eligibility for reimbursement for
emergency treatment furnished in a non-Department facility. Under
section 1725 of title 38, veterans are not compensated if emergency
care is paid for in whole by a third party. Veterans receiving
emergency care in a non-Department facility are not being reimbursed
fully if services are paid for in part by another entity, as is the
case with Medicare and other insurance companies. H.R. 5888 removes the
provision ``or in part'' to allow the Department to reimburse veterans
who have unpaid medical bills after partial coverage by their insurance
companies. This helps improve the lives of veterans who are unable to
pay medical bills without help from the VA and for this reason, AMVETS
wholly supports this legislation.
AMVETS wholly supports 6114 the ``Simplifying and Updating National
Standards to Encourage Testing of the Human Immunodeficiency Virus of
2008'' or ``SUNSET Act of 2008''. Current Veterans Affairs health care
standards, which have been in place since 1988, are outdated and
inconsistent with the new CDC guidelines issued in September 2006. A
recent study conducted by the Public Health Strategic Health Care Group
at the Veterans Health Administration showed that 55% of HIV positive
veterans had already suffered significant damage to their immune system
and developed full blown AIDS. In addition, 40% of these veterans had
accessed the VA system an average of 6 times before being diagnosed.
The VA system is the largest in the United States, also making it the
largest provider of HIV care. Conversely, compared to the general
population, veterans are disproportionately affected by the lack of
routine HIV testing. Increasing the frequency of testing will
facilitate early detection, treatment, reduce HIV and AIDS related
death while improving the health of veterans living with these
diseases.
AMVETS wholly supports H.R. 6122 ``Veterans Pain Care Act of
2008''. This bill seeks to implement department-wide standards of the
management of pain experienced by veterans through the assurance of
prompt and appropriate pain care treatment, education and training on
veteran pain care, and the creation of an annual report by the
Secretary to the Committee on Veterans' Affairs. Acute and chronic pain
is experienced disproportionately to the general public by military
personnel and veterans. Serious, but survivable injuries acquired in
modern warfare can lead to long term problems associated with chronic
pain and left untreated, can have lifelong consequences. It is
important for the Department of Veterans Affairs to have a
comprehensive policy on the management of pain experienced by veterans
enrolled in health care services provided by the Department. Helping
veterans manage pain can lead to an improved quality of life for them
and their families.
Chairman Michaud, this concludes my testimony. I am happy to
respond to any questions the Subcommittee may have.
Statement of Hon. Jerry F. Costello,
a Representative in Congress from the State of Illinois
Mr. Chairman, I want to thank you for the Subcommittee's
consideration of legislation that Representatives Mitchell, Shimkus,
Whitfield and I have introduced to implement reliable controls within
the Veterans Health Administration (VHA) to ensure that VA physicians
are sufficiently qualified. H.R. 4463, the Veterans Health Care Quality
Improvement Act, would make needed reforms to current VA policies that
pertain to health care quality assurance measures. This legislation is
the necessary result of unfortunate events that occurred at the Marion
Veteran's Administration Medical Center (VAMC) in my Congressional
district. Investigations performed by the VA Inspector General's office
and the Office of the Medical Inspector discovered faulty leadership at
the Medical Center and significant institutional problems which
directly resulted in the tragic deaths of at least nine individuals in
the past two years and in significant health problems for numerous
others. While the Marion VAMC continues to be reformed and reviewed, it
is unlikely that Marion VAMC is the only facility where such problems
have occurred. Healthcare quality assurance procedures across the board
must be improved to ensure that this does not happen to any veteran
again.
Our legislation does several things to improve the quality of care
at Veterans' hospitals. H.R. 4463 would mandate a more thorough and
standardized process for reviewing physician qualifications.
Prospective and current physicians would have to provide a complete
history of any lawsuits, civil action, or other claim that was taken
against them, a complete disclosure of the history of their license to
practice in each state, and the status of licenses. Regional Directors
of Veterans Integrated Services Networks (VISN) would have
responsibility of investigating these records and deciding if it would
disqualify a candidate from becoming a VA physician. Having physicians
give a full account of their professional history will ensure that
those treating our veterans are fully qualified.
To oversee this program, the bill requires the Under Secretary of
Health to appoint a national Quality Assurance Officer. One of the most
significant problems that contributed to the incidents at the Marion
VAMC was that quality management responsibilities were divided among
multiple groups at the facility and, in some cases, there was no
oversight provided. The National Quality Assurance Officer will be
responsible for full oversight of quality assurance programs within the
VA. The National Quality Assurance Officer will also be responsible for
policies regarding peer review, confidential reporting by VA personnel,
and the accountability of medical facility leadership.
In addition, the bill would require the appointment of a quality
assurance officer for each VISN to be responsible for the Network and a
quality assurance officer to be responsible for each medical facility.
These individuals would have responsibility for coordinating,
monitoring, and overseeing the quality assurance programs for their
designated areas. Instituting clear accountability for quality
management responsibilities will be an important reform to current VHA
practice.
This legislation also addresses the need for recruiting and
retaining highly qualified physicians to Veteran health care
facilities. Certain areas of the country, such as our rural areas, have
difficulty in attracting skilled physicians. The bill includes
provisions establishing a loan repayment program for qualified
physicians in exchange for three years of service in hard to fill
positions, as well as a health benefit program for part time
physicians.
Finally, the bill requires the Secretary of the VA to conduct a
comprehensive review of current policies pertaining to health care
quality and patient safety at VA medical facilities. At the conclusion
of their investigations into the events at the Marion VAMC, the Office
of Inspector General and the VHA's Office of the Medical Inspector made
proposals addressing institutional weaknesses pertaining to quality
management. They are a useful starting point and it is good the VA has
begun implementing some of them. For instance, the VHA is currently
establishing criteria to define which surgery procedures can be
performed at each medical facility. However, more can and should be
done. That is why I am glad the Committee is reviewing H.R. 4463 so
that we can bring it to the House floor for consideration. The Veterans
Health Care Quality Improvement Act addresses the fundamental problem
of a lack of standardized methods for determining quality assurance
while designating officials within the VA to be responsible for this
oversight.
Mr. Chairman, it is not enough that we only provide the resources
for veterans' health care. We must be equally committed to providing
that care in a responsible, professional manner. We owe these reforms
to the veterans who trust us to provide them with the quality care they
have earned. Mr. Chairman, thank you for continuing to hold hearings on
this important issue and legislation.
Statement of Joy J. Ilem,
Assistant National Legislative Director, Disabled American Veterans
Mr. Chairman and Members of the Subcommittee:
Thank you for inviting the Disabled American Veterans (DAV) to
submit testimony at this hearing, and for the opportunity to present
the views of our organization on the health care legislation pending
before the Subcommittee today. DAV is an organization of 1.3 million
service-disabled veterans and devotes its energies to rebuilding the
lives of disabled veterans and their families.
The measures before the Subcommittee today cover a range of issues
important to DAV, to veterans and to their families. This testimony
includes a synopsis of each of the bills being considered, along with
DAV's position or other commentary on them. Our comments are expressed
in numerical sequence of the bills.
H.R. 4089--To amend title 38, United States Code, to improve the
collective bargaining rights and procedures for review of
adverse actions of certain employees of the Department of
Veterans Affairs
DAV does not have an approved resolution from our membership on
this specific VA labor-management dispute that prompted the
introduction of this bill. However, we believe labor organizations that
represent employees in recognized bargaining units within the VA health
care and benefits systems have an innate right to information and
reasonable participation that result in making VA a workplace of
choice, and particularly to fully represent VA employees on issues
impacting working conditions and ultimately patient care.
Congress passed section 7422 of title 38, United States Code in
1991, in order to grant specific bargaining rights to labor in VA
professional units, and to promote effective interactions and
negotiation between VA management and its labor force representatives
concerned about the status and working conditions of VA physicians,
nurses and other direct caregivers appointed under title 38, United
States Code. In providing this authority, Congress granted to VA
employees and their recognized representatives a right that already
existed for all other federal employees appointed under title 5, United
States Code. Nevertheless, federal labor organizations have reported
that VA has severely restricted the recognized federal bargaining unit
representatives from participating in, or even being informed about,
human resources decisions and policies that directly impact conditions
of employment of the VA professional staffs within these bargaining
units. We are advised by labor organizations that when management
actions are challenged VA officials (many at the local level) have used
subsections (b), (c) and (d) of section 7422 as a statutory shield to
obstruct any labor involvement to correct or ameliorate the negative
impact of VA's management decisions, even when management is allegedly
not complying with clear statutory mandates (e.g., locality pay surveys
and alternative work schedules for nurses, physician market pay
compensation panels, etc.).
Facing VA's refusal to bargain, the only recourse available to
labor organizations is to seek redress in the federal court system.
However, recent case law has severely weakened the rights of title 38
appointees to obtain judicial review of arbitration decisions. Title 38
employees also have fewer due process rights than their title 5
counterparts in administrative appeals hearings.
It appears that the often hostile environment consequent to these
disagreements diminishes VA as a preferred workplace for many of its
health care professionals. Likewise, veterans who depend on VA and who
receive care from VA's physicians, nurses and others can be negatively
affected by that environment.
We believe this bill, which would rescind VA's refusal to bargain
on matters within the purview of section 7422, through striking of
subsections (b), (c) and (d), and that would clarify other critical
appeal and judicial rights of title 38 appointees, is an appropriate
remedy, and would return VA and labor to a more balanced bargaining
relationship on issues of importance to VA's professional workforce.
Therefore, DAV commends the bipartisan sponsors for introducing this
bill, and appreciates the work of the Subcommittee in considering it
today. DAV would offer no objection to the enactment of this bill.
H.R. 4463--Veterans Health Care Quality Improvement Act
This bill would direct the Secretary of Veterans Affairs to
prescribe standards for appointment and practice for a physician within
the Veterans Health Administration of the VA. The bill would require
appointees to VA physician positions, and physicians already employed
by VA at the time of enactment, to disclose certain private
information, including each lawsuit, civil action, or other claim made
against the individual for medical malpractice or negligence, and the
results or status of those claims. Also under this bill, each appointee
would be required to disclose any judgments that had been made for
medical malpractice or negligence and any payments made. The bill would
require all new physician appointments to be approved by the
responsible director of the Veterans Integrated Services Network (VISN)
in which the individual would be assigned to serve and require all VA
specialty physicians to be board certified in the specialties in which
the individuals would practice. Also the bill would require State
licensure by VA physicians in the particular State of VA practice.
The measure would establish new requirements and accountabilities
in quality assurance at the local, VISN and VA Central Office levels,
and would direct the Secretary to review VA policies for maintaining
health care quality and patient safety at VA medical facilities. The
bill also would establish loan repayment programs for physicians in
scarce specialties, a tuition reimbursement program for physicians and
medical students in exchange for commitments to serve in VA, and
enrollment of part-time VA physicians in the Federal Employees Health
Benefits Program. The bill would admonish the Secretary to undertake
additional incentives to encourage individuals to serve as VA
physicians.
DAV has no adopted resolution from our membership on these specific
issues. Under current policy, VA is required to investigate the
background of all appointees, including verifying citizenship or
immigration status, licensure status, and any significant blemishes in
appointees' backgrounds, including criminality or other malfeasance,
medical or otherwise. The facility in question that likely stimulated
the sponsor to introduce this legislation was not in compliance with
those existing requirements, thus raising questions about VA's ability
to oversee its facilities in the area of physician employment. It is
our understanding that corrective action has been taken by the VA
Central Office but only after some unfortunate incidents related to
these lapses came to light. VA has advised that it has strengthened its
internal policies to ensure no such recurrence.
We appreciate and strongly support the intent of the bill to
stimulate recruitment and to promote VA physician careers with various
new incentives, and, while it seems clear that additional oversight in
physician appointments is necessary, we trust that the new reporting,
State licensure and certification requirements in the bill would not
serve as obstacles to physicians in considering VA careers in the
future. We note that in testimony on May 21, 2008 to the Senate
Committee on Veterans' Affairs on S. 2377, the Senate companion to this
bill, VA raised a number of valid concerns with respect to State
licensure limitations this bill would impose on practicing VA
physicians. We ask the Subcommittee to take those concerns into account
as you consider the merits of this bill.
H.R. 5888--To amend title 38, United States Code, to expand veteran
eligibility for reimbursement by the Secretary of Veterans
Affairs for emergency treatment furnished in a non-Department
facility.
This bill would amend subparagraph (b)(3)(C) of section 1725 of
title 38, United States Code, by striking the words ``or in part''
where they appear in current law. In 1999, Congress enacted the
Veterans Millennium Health Care and Benefits Act, Public Law 106-117.
That act provided the authority sought by VA at the time to complete
its role as a comprehensive health care system for all veterans who are
enrolled, by giving VA authority to reimburse costs of emergency
private care under certain circumstances. Prior to passage of the
Millennium Act, VA was essentially without authority to pay emergency
expenses in private facilities for its own patients, unless generally
they were service-connected veterans. Under prior law VA was authorized
to pay for non-VA emergency treatment for a veteran's service-connected
disability, a nonservice-connected disability aggravating a veteran's
service connected condition, any condition of a veteran rated
permanently and totally disabled from a service-connected condition(s),
and a veteran enrolled in a VA vocational rehabilitation program.
The intent of this bill would enable a nonservice-connected
veteran, enrolled in VA health care, who otherwise is eligible for VA
reimbursement of certain private emergency health care expenses under
the Millennium Act authority but for the existence of coverage ``in
part'' by a form of private health insurance (no matter how major or
minor such private coverage might be), to be reimbursed as otherwise
authorized under the Millennium Act emergency care reimbursement
program. Rescission of the words ``or in part'' in section 1725 would
open the door for a veteran with minimal insurance coverage, such as a
small medical rider on a State-required automobile insurance plan, to
gain VA reimbursement for emergency care under the existing authority.
Today, that veteran would be denied reimbursement, because he or she is
covered ``in part.''
The bill would be effective as of October 6, 2007, presumably to
take into account any individuals who may have recently been denied VA
reimbursement because of these current restrictions.
Mr. Chairman, we note that the House, on May 21, 2008 passed H.R.
3819, the Veterans Emergency Care Fairness Act of 2007, by a recorded
vote of 412-0. Enactment of that bill, strongly supported by DAV, would
also clarify and expand the circumstances in which the Secretary must
pay for expenses incurred in connection with an eligible veteran's
authorized emergency treatment in a non-VA facility, including a
redefinition of the term ``emergency'' on a reasonable layman basis. A
unanimous recorded vote on that measure gives us assurance that it is
the Congress's intent to give the benefit of the doubt to a veteran who
is caught in an emergency medical situation and needs VA's assistance
with issues of doubt. We believe the circumstances presented here in
H.R. 5888 bear a resemblance to those that countenanced the
introduction and House passage of H.R. 3819.
As in the case of H.R. 3819, DAV supports the intent of this bill.
This bill's purposes are in accord with the mandate from our membership
and consistent with the recommendations of the Independent Budget to
improve reimbursement policies for non-VA emergency health care
services for enrolled veterans. We urge the Subcommittee to approve
this bill for further consideration by the Full Committee, and we
endorse its enactment into law. The DAV thanks those involved for their
efforts to ensure the improvements to this essential emergency relief
benefit as originally contemplated in the Millennium Act and in this
bill are properly implemented.
H. R. 6114--The Simplifying and Updating National Standards to
Encourage Testing of the Human Immunodeficiency Virus of 2008,
or, the SUNSET Act of 2008
This bill would repeal the statutory enactment from 1988 dealing
with human immunodeficiency virus (HIV) testing.
DAV has no adopted resolution from our membership dealing with this
specific provision; thus, we take no position with respect to this
bill.
H.R. 6122--The Veterans Pain Care Act of 2008
This measure would amend title 38, United States Code, to establish
a mandatory pain care initiative throughout the VA health care system
for enrolled veterans.
Both the medical literature and media reflect a growing interest by
health care providers in the specialized field of pain management. A
number of advances in medicine and technologies from that interest are
benefiting severely wounded service personnel and veterans. A recent
study of Operation Iraqi Freedom and Operation Enduring Freedom (OIF/
OEF) service personnel receiving treatment in VA Polytrauma Centers
found that pain is highly prevalent. The study also noted in its
clinical implications that pain should be consistently assessed,
treated, and regularly documented. The report concluded that
polytraumatically injured patients are at potential risk for
development of chronic pain, and that aggressive and multidisciplinary
pain management (including medical and behavioral specialists) is a
necessity. The report suggested the phenomenon of pain is a new
opportunity for VA research in evaluating long term outcomes;
developing and evaluating valid pain assessment measures for the
cognitively impaired; and, developing and evaluating education or
policy initiatives designed to improve the consistency of assessment
and treatment of pain across the VA continuum of care.
VA has been a leader in assessment and treatment of pain. In fact
in 1998 VA issued its inaugural National Pain Management Strategy (the
current iteration of VA's policy is VHA Directive 2003-021). We
understand that the overall objective of VA's national strategy is to
develop a comprehensive, multicultural, integrated, system-wide
approach to pain management that reduces pain and suffering for
veterans experiencing acute and chronic pain associated with a wide
range of illnesses, including terminal illnesses. However, we are
concerned that implementation of pain management programs has not been
consistent throughout VA's nationwide health care system.
Given our concerns about implementation and standardization across
the VA system, this bill is welcome. It would require, by October 1,
2008, the establishment of a VA system-wide policy on the management of
pain. Under the bill, VA's plan would be required to cover pain
management; related standards of care to treat pain; consistency across
the VA system of care; assurance to VA's patients who need care for
pain; conduct of research initiatives in pain; establishment of
educational and training programs in pain for VA clinical staffs, and
the provision of patient education in pain. The bill would require VA
to report to the Committees on Veterans' Affairs its progress and
status on its required pain policy within 180 days of initial
implementation. The required report would disclose VA's progress on
each of the areas of the bill's emphasis in respect to VA's policy and
program on pain.
While DAV has no specific resolution adopted by our membership in
support of establishing a legislated VA system-wide pain initiative, we
believe the goals of the bill are laudable and in accord with providing
high quality, comprehensive health care services to sick and disabled
veterans. We believe this bill would be strongly supported by our
membership; therefore, we have no objection to this measure and look
forward to its enactment.
Mr. Chairman, this concludes my testimony on these bills. DAV
appreciates the opportunity to provide this statement for the use of
the Subcommittee, and we are pleased to address any questions you or
other members may have concerning the measure under consideration.
Statement of David J. Holway, National President,
National Association of Government Employees, SEIU/NAGE Local 5000
Mr. Chairman and Members of the Subcommittee:
On behalf of the National Association of Government Employees
(SEIU/NAGE), and the more than 100,000 workers we represent, including
20,000 at the Department of Veterans Affairs (VA), I would like to
thank you for the opportunity to submit testimony regarding H.R. 4089.
SEIU/NAGE supports H.R. 4089. This bill would restore a meaningful
scope of bargaining for Title 38 health care providers at the VA, a
critical necessity to boost morale and strengthen recruitment and
retention at the agency. Giving health care providers a meaningful
voice in their workplace will lead to better care for the American
veteran.
In 1991, Congress amended Title 38 to provide VA medical
professionals with collective bargaining rights (which include the
rights to use the negotiated grievance procedure and arbitration).
Under Sec. 7422 of Title 38, covered employees can negotiate, file
grievances and arbitrate disputes over working conditions, except for
matters concerning or arising out of professional conduct or
competence, peer review, or compensation. Increasingly, VA management
is interpreting these exceptions very broadly, and refusing to bargain
over virtually every significant workplace issue affecting medical
professionals. The broad interpretation of Sec. 7422 is leading to
significant dissatisfaction among rank-and-file VA health care
providers.
We have heard from our local members across the country who have
urged our union to make passage of H.R. 4089 our top legislative
priority for legislation impacting the VA workforce. Their concern is
that too many highly qualified, outstanding health care professionals
have left the VA for other employment because they were unsuccessful in
getting someone of authority at the agency to listen to or address
legitimate concerns because the issue fell under the ever-growing
umbrella of 7422.
The agency has increasingly been unwilling to address those issues
that are most important to Title 38 employees, including time
schedules, shift rotations, evaluations, fair and equal opportunity to
be considered for a different position within the facility, and fair
treatment among colleagues. Rather than suffer under a system where
they have no mechanism to provide input or air grievances,
disenfranchised VA employees simply move on to other employment. It has
gone on too long, and it has to stop.
VA medical professionals have extremely limited collective
bargaining rights in the first place, and the broad interpretation of
Sec. 7422 of Title 38 is narrowing the scope of bargaining to the point
that it is practically meaningless. As a result, RNs, doctors, and
other impacted employees at the VA are experiencing increased job
stress, low morale and burnout. This in turn exacerbates the VA's well-
documented recruitment and retention problems. Chronic short-staffing
has been shown to adversely impact quality of care, patient safety, and
workplace safety, leading to costly stopgap measures such as the
overuse of contract nurses and doctors.
Passing H.R. 4089 would help to address many of these concerns.
This bill would restore a meaningful scope of bargaining for Title 38
VA professionals by eliminating the ``7422 exceptions'' (conduct,
competence, compensation, and peer review) under the law.
Eliminating these exceptions will provide these health care
providers with the same rights as other VA providers, including
psychologists, LPNs, and pharmacists, as well as other federal
employees. Title 5 health care providers at the VA have full collective
bargaining rights. Even nurses and doctors at Army Medical Centers such
as Walter Reed, who perform the same exact function as nurses and
doctors at the VA, have full collective bargaining rights. Many private
sector health care providers have a meaningful voice in their working
conditions and participate in hospital affairs. There is no reason for
Title 38 VA workers to have these critical rights taken away.
Restoring meaningful bargaining rights will greatly increase morale
at the VA. It will also address recruitment and retention issues, which
are critical at this time, given the veterans returning home from
conflicts abroad. All this will lead to better care for our nation's
veterans.
SEIU/NAGE greatly appreciates the Subcommittee's decision to hold a
hearing on this matter. I thank the Subcommittee for the opportunity to
provide testimony.
Statement of Patricia LaSala, First Vice President,
National Federation of Federal Employees
Thank you, Chairman and distinguished Subcommittee members, for the
opportunity to submit the following testimony.
My name is Patricia LaSala. I serve as the First Vice President of
the National Federation of Federal Employees, an affiliate of the
IAMAW. I am also the president of NFFE Local 1, located at the San
Francisco VA Medical Center. I am providing testimony on behalf of the
100,000 federal workers our union represents nationwide, including
5,000 Department of Veterans Affairs health care providers.
After almost 30 years of Federal Service during which Title 38 has
driven how I am to exist within the Department of Veterans Affairs, I
say with great certainty, change is long overdue for Section 7422. When
Congress amended Title 38 in 1991 to allow professionals to have
collective bargaining rights similar to our colleagues in the private
sector, never did we expect to see it as prohibitive as it has been
interpreted during the last administration. When you take away the
right to collectively bargain over conduct, competence, peer review,
and compensation, you make our use of the negotiated grievance
procedure all but meaningless.
The professional Title 38 employee comes to federal service out of
a deep sense of commitment to care for the wounded American veteran, as
well as to keep other veterans well and treat those who become ill. We
also treat those veterans whose conditions are exacerbated by war or
their service experience. Most of us knew we would not be paid equal to
our counterparts in the private sector. Compensation is not why we came
to the VA or to other federal health agencies. Just speak to a VA
nurse, doctor, dentist, physician's assistant, podiatrist, or
optometrist. They will tell you that to care for and give back to those
who gave so much was a major motivator in seeking employment at the VA.
When you allow a person to stand up for themselves, seek justice,
and ask for recognition for a job well done, you add a sense of pride
to their personal persona and it plays itself out in their professional
practice. When a professional is allowed to defend his or her conduct,
explain the circumstances concerning a complaint, and seek and receive
redress, we provide them with the basic rights that this country was
built on. No more, no less. However, ``7422'' has become the Draconian
battle cry for supervisors when they are asked to decide an issue
relating to conduct, competence, peer review and compensation. Logic,
fairness, respect, and simple kindness are tossed out in place of these
oft-used numbers.
Often a simple discussion of circumstances that drove the outcome
or issue never takes place. Instead a complaint goes unheard, and
questions about a performance review are dismissed or claimed to be
outside the purview of the bargaining agreement. Just imagine what that
does to a professional, or for that matter anyone who has sincere
questions or concerns about their treatment or their career.
Complicating this unfairness is the fact there are two Titles for
professional employees in federal service: Title 38 professionals as
identified, and Title 5 professionals. The latter are psychologists,
social workers, pharmacists, dieticians, addiction therapists, and
probably 15 to 20 more professional job titles. Unlike Title 38
professional employees, they can use the grievance process as well as
other appeal avenues, such as the MSPB, when issues arise. They can
appeal their classifications, unlawful terminations, and performance
reviews that are incorrect or unfair. These professionals work side-by-
side caring for the same veterans, yet they have different rights and
privileges based on whether they are appointed by Title 38 or Title 5.
I ask you if that makes any sense or whether it contributes to a
cohesive health care team.
Our children are coming home from war. They expect and deserve
competent health care professionals to be there for them. If you do not
think that the lack of rights of nurses or doctors and all Title 38
professionals affects recruitment or retention of employees, please
think again. It absolutely does impact the ability of the agency to
attract and keep qualified health care providers.
Hospitals, in my view, are like small towns. Hospital workers from
one small town have friends and professional colleagues in another.
While they share scientific news and research findings, pay parity,
workers' rights and working conditions are also spoken about. The
absence of these basic worker rights can, and often does, dissuade
potential applicants from a professional career in the federal service,
namely the VA.
So I ask, the next time you are visiting a town that has a VA or if
there is one in your hometown, walk in. If you can make an authorized
visit during the night shift this is even better. Walk those halls and
corridors and see that registered nurse comforting a distraught family
of a critically ill veteran, a nurse tending a veteran in pain or one
that is anxious or fearful. Watch those blessed hands changing a
complicated dressing, or an IV, bathing or massaging a war torn body,
and then tell us that nurse cannot question decisions that guide and
govern her career. I doubt that will be your response.
Please support H.R. 4089. This is a critical piece of legislation
that will bring a much-needed sense of fairness to the Title 38
workforce at the VA. I can assure you that this legislation will do so
much to improve the morale of the workers caring day-in and day-out for
the American veteran, and that will help us give American veterans the
care they deserve.
God bless that American treasure called the American veteran and
God bless those who chose to care for them. Once again, I thank the
Subcommittee for their attention to this important matter and for the
opportunity to give testimony.
Statement of Richard Rosenquist, M.D., Chair, Pain Care Coalition
Pain Care Coalition
Washington, DC.
June 4, 2008
Pain Care Coalition--A National Coalition for Responsible Pain Care
American Academy of Pain Medicine, American Headache Society,
American Pain Society, American Society of Anesthesiologists
Hon. Michael H. Michaud
Chairman, Health Subcommittee
Committee on Veterans' Affairs
United States House of Representatives
335 Cannon House Office Building
Washington, DC 20515
Re: H.R. 6122--Veterans Pain Care Act of 2008
Dear Chairman Michaud:
The Pain Care Coalition enthusiastically supports H.R. 6122, a bill
to improve pain care and research for the benefit of America's
veterans. I submit the enclosed statement of the Pain Care Coalition
outlining the need for and benefits of this important legislation, and
request that it be included in the record of the Subcommittee's June
5th hearing.
Mr. Chairman, virtually every wounded soldier returning from the
current conflicts will experience acute pain attributable to their
battlefield injuries. Far too many will go on to live a life burdened
with chronic pain, frequently so severe as to affect their function,
their relationships with their families, their ability to work
productively, and often their self esteem. With prompt and aggressive
treatment, much of that pain can be managed and alleviated, but without
substantial research efforts leading to improved treatment options,
much of it will never be truly cured.
The VA is doing much to promote good pain care within its health
system, but much, much more remains to be done. Please ensure that pain
care and research are, and continue to be, national priorities on which
the country's veterans can rely.
Respectfully submitted,
Richard Rosenquist, M.D.
Chair
Enclosure
__________
STATEMENT OF PAIN CARE COALITION IN SUPPORT OF H.R. 6122--VETERANS PAIN
CARE ACT OF 2008
The Pain Care Coalition is pleased to support H.R. 6122, the
Veterans Pain Care Act of 2008. The Pain Care Coalition is a national
advocacy effort of the American Academy of Pain Medicine, American Pain
Society, American Headache Society and American Society of
Anesthesiologists. Collectively, these organizations represent more
than 50,000 physicians and other clinicians, researchers, and educators
who provide clinical leadership in the increasingly specialized field
of pain management. Some of these individuals work directly in the VA
health system, and many others are involved in collaborative
relationships with research and clinical care programs throughout the
VA system.
As professionals in the pain care field, members of these
organizations are committed to assuring that those who serve the
country in times of war get the very best pain care possible during all
stages of their service, and in all settings of the military and
veteran health and medical systems. These settings range from the
battlefield to the clinics, hospitals, rehabilitation centers and long
term care facilities of the VA. As a complement to these clinical care
responsibilities, members of the Coalition have a continuing interest
and responsibility in pain care research within the VA's Medical and
Prosthetic Research Program, as well as other public and private
research efforts with which the VA collaborates.
THE SCOPE OF THE PAIN PROBLEM
Pain is a very large public health problem in this country. It is
the most common reason people access the medical care system, a major
cause of lost productivity in the workplace, and a substantial
contributor to short and long term disability. It affects Americans at
all stages of life and in all walks of life. For example, 26 million
Americans of working age have frequent back pain, and chronic back pain
is the leading cause of disability for those under 45 years of age. 25
million suffer from migraine headaches. 4 million, mostly women, suffer
from a complex pain syndrome known as fibromyalgia. 40 million have
arthritis pain.
Pain imposes a terrible burden on those who suffer and on their
families, and it imposes large costs on the health care and disability
income systems. Medical costs and lost productivity alone are estimated
to top $100 Billion annually. Pain is often poorly understood by those
who suffer and by those around them. It is often undiagnosed or
misdiagnosed, and under-treated or mistreated. Sometimes pain is the
symptom of other diseases as in the case of cancer, arthritis, heart
disease, and diabetes. Other times, pain is the disease itself as with
migraine, chronic back pain and various diseases associated with damage
to the nervous system, such as post-herpetic neuralgia, diabetic
neuropathy, or injuries to the nervous system such as commonly occur in
combat, including phantom limb pain, post-injury or post-surgery
neuralgias, and traumatic brain injury.
The most recent complete study of soldiers enrolled in VA
Polytrauma Centers shows that more than 90% have chronic pain, that
most have pain from more than one part of the body, and that pain is
the most common symptom in returning soldiers. Advances in
neuroscience, such as neuroimaging, now demonstrate that unrelieved
pain, regardless of its initial cause, can be an aggressive disease
that damages the nervous system, causing permanent pathological changes
in sensory neurons and in the tissues of the spinal cord and brain.
Pain can be acute and effectively treated by short term
interventions, or it can be chronic, often without effective ``cures,''
and sometimes without consistent and effective means of alleviation.
Those who suffer severe chronic pain see their daily lives disrupted--
sometimes forever. Their pain and their constant search for relief
affects their function, their relationships with those they love, their
ability to do their work effectively, and often their self esteem.
Chronic pain is often accompanied by or leads to sleep disorders,
emotional distress, anxiety, depression, and even suicide.
Pain is a major health problem in the military and veteran
populations. The physical and emotional stresses of military service make
inevitable the disproportionate incidence of both acute and chronic pain among
active duty personnel. The incidence of acute pain among those injured in the
current conflicts will be virtually 100%, and for far too many, the
original short term trauma will be followed by chronic pain of
significant dimension and duration. For example, virtually all who lose
limbs as a result of combat injury will suffer from phantom limb pain.
While this can be managed with varying degrees of effectiveness, there
is no known ``cure.'' Virtually all veterans fitted with prostheses
will suffer pain at the device/body ``interface.'' This can also be
managed to some degree, but rarely eliminated.
Far less visible, but even more prevalent, is the extensive damage
to the central and peripheral nervous systems resulting from the
horrific explosive devices deployed in the current conflicts. Unlike
broken bones, flesh wounds and burns, many of which will eventually
heal after aggressive treatment, extensive nerve damage may only be
manageable, not curable, given the current state of science and
clinical practice. Most returning veterans with extensive nerve damage
will be chronic pain sufferers and will require long term pain
management, with varying prognoses for success. Ironically, the
proportion of these chronic pain sufferers among returning wounded
servicemen and women will be far greater in the current conflicts than
in previous wars because of the remarkable successes of military
medicine which now keep so many of the very severely injured alive.
THE STATE OF PAIN CARE AND RESEARCH AT THE VA
Perhaps more than any other federal agency, the VA has been a
leader in focusing institutional resources on the assessment and
treatment of pain. Under a ``National Pain Management Strategy''
initiated in November 1998 (``Strategy''), and pursuant to VHA
Directive 2003-021, the Veterans Health Administration has made pain
management a national priority. Among the specific objectives of the
Strategy are:
Providing a system-wide standard of care to reduce
suffering from ``preventable'' pain;
Ensuring consistency in the assessment of pain;
Ensuring prompt and appropriate treatment for pain;
Promoting an inter-disciplinary approach to pain
management;and
Providing adequate training to and resources for
clinicians in VA healthcare to achieve these objectives.
The Pain Care Coalition applauds the Strategy and generally
supports its specific goals and objectives. At the same time, the
Coalition has significant concerns with the current VA effort:
Directive 2003-021 was only a 5-year plan. It needs
revision and renewal this year;
There has been, to the Coalition's knowledge, no
comprehensive assessment of the Strategy's strengths, weaknesses and
accomplishments; and
Reports from the field suggest that implementation has
been far from consistent. Some VA facilities have made great strides in
improving pain care, while for others it is more an aspirational goal
than an operating reality. As a result, veterans get widely different
treatment for pain depending on the expertise and resources of the
particular VA facility at which they receive their care.
The Pain Care Coalition believes that, in order to ensure
effectiveness, the VA's pain management Strategy must be accompanied by
and integrated with a significant research and training commitment to
advancing the science of pain care, and to translating developments in
the science to improved clinical care throughout the system.
On the one hand, the VA has had a long and continuing research
interest in the phenomenon of phantom limb pain, with current work
focused at the molecular level. It also has current research efforts in
neural repair, which might some day lead to improvements in therapy for
those veterans currently returning with significant damage to the
nervous system. And it recently completed a successful study of the
effectiveness of a shingles vaccine in older veterans which validated
research findings elsewhere, and will improve care in the general
population. Other important pain research initiatives are scattered
amongst NIH research institutes.
In 2006, through an initial grant funded privately, the VA brought
together research investigators with interests in pain as part of a VA
sponsored conference on pain and palliative care. That meeting
identified several research interest groups including post-deployment
pain, primary care pain programs, and opioid analgesics. These groups
generated a number of new research projects, several of which have
earned Merit Award funding through the peer-review process of the VA's
Office of Research Development (``ORD''). Work from these groups also
spawned important
articles in major journals and a special issue of the Journal of
Rehabilitation Research and Development devoted to pain research. Based
on this success, the VA's ORD funded a second meeting of pain
researchers just held in September of 2007. At this meeting,
researchers identified other important projects which demonstrated the
breadth and depth of research that is possible if a focused effort is
made to organize and promote a VA research agenda dedicated to the
basic and clinical sciences of pain medicine.
It is imperative that pain research be placed high on the list of
current VA research priorities. While recent developments suggest an
increasing awareness among VA researchers of the importance of pain in
the veteran populations, the resources to make a significant difference
have not yet been committed. The proportion of the VA research budget
devoted to pain is unknown, or at least not systematically reported. A
significant internally generated proposal to expand research, training
and care in a coordinated fashion was apparently tabled for lack of
funding.
Pain is not an area where the VA's leveraged research approach can
rely on leadership from research partners at the NIH or in private
industry. For example, despite documentation that chronic pain is one
of the most costly of all health problems to the U.S. economy, a review
of the NIH pain research portfolio in the early years of this decade
showed that only 1% of NIH's annual research funding was devoted to
projects with a primary focus on pain. When projects with pain as a
secondary concern were added, it only rose to 2%. There is no Institute
or Center at NIH to provide a central home for pain research, and
efforts to coordinate pain research across the various institutes and
centers are in the very early stages of development.
While private industry has significantly advanced drug and device
therapies for particular types of pain or classes of pain patients,
industry alone can not be expected to carry the load of long term basic
science research needed to better understand the mechanisms of pain,
and in particular how chronic pain syndromes develop despite successful
treatment of the original trauma.
HOW H.R. 6122 WOULD HELP THE COUNTRY'S VETERANS
The Pain Care Coalition applauds Cong. Walz for his leadership in
introducing H.R. 6122 in the House and urges the Subcommittee to act
favorably on the bill at the earliest opportunity. The legislation is a
companion to bi-partisan legislation developed in the Senate by
Senators Akaka and Burr which now awaits Senate passage as Title II of
S. 2162. While not a complete solution to all shortcomings in pain care
in the VA health system, the bill represents an important and
manageable first step in moving the VA toward more effective--and
particularly more consistent--pain care assessment, diagnosis and
treatment. The bill:
requires ``fast track'' development and implementation of
a comprehensive system-wide policy on pain management in VA facilities;
specifies the essential elements of such a policy,
including among others, standards of assessment and treatment,
assurance of prompt treatment when medically necessary, research,
education and training for health professionals, and patient education
for veterans and their families;
requires consultation with both VSOs and professional
experts outside the VA in developing the policy; and
requires annual reporting to the VA Committees of the
Congress on the key elements of the policy, ensuring ongoing oversight.
The Pain Care Coalition believes that these features will provide
the building blocks upon which major improvements in pain care for
veterans will ultimately be constructed.
CONCLUSION
Pain is often characterized as an invisible disease--we can not see
it, and unlike such diseases as cancer, diabetes, and heart disease,
there are no affordable and widely available lab or imaging tests to
confirm its presence and quantify its severity. But that's no excuse
for letting research and treatment efforts lag behind those of other
priorities.
The Pain Care Coalition is committed to advancing the practice of
pain management to ensure that the brave men and women returning from
combat receive the best pain care possible. The Coalition, along with
each of the organizations it represents, stands ready to work with the
House and Senate Committees on Veterans' Affairs and the Department of
Veterans Affairs toward that end.
For Further Information Contact: Richard Rosenquist, M.D. Chair,
Pain Care Coalition, [email protected], (319) 353-7783, or
Robert Saner, Washington Counsel, Pain Care Coalition, [email protected],
(202) 466-6550.
Statement of Paralyzed Veterans of America
Mr. Chairman and members of the Subcommittee, Paralyzed Veterans of
America (PVA) would like to thank you for the opportunity to submit a
statement for the record on H.R. 4089, a bill to improve collective
bargaining rights and procedures for review of adverse actions on
certain employees of the Department of Veterans Affairs (VA); H.R.
4463, the ``Veterans Health Care Quality Improvement Act;'' H.R. 5888,
a bill to expand veteran eligibility for reimbursement by the VA for
emergency treatment furnished in a non-Department facility; H.R. 6114,
the ``SUNSET Act;'' and H.R. 6122, the ``Veterans Pain Care Act.'' We
hope that addressing the issues outlined in this legislation will
better benefit today's veterans and the veterans of tomorrow.
H.R. 4089, Collective Bargaining
PVA generally supports the provisions of H.R. 4089, a bill that
would improve the collective bargaining rights and procedures for
review of adverse actions for certain health care professionals in the
VA. These changes would be a positive step in addressing the
recruitment and retention challenges the VA faces to hire key health
care professionals, particularly registered nurses (RN), physicians,
physician assistants, and other selected specialists.
As we understand current practice, certain specific positions
(including those mentioned previously) do not have particular rights to
grieve or arbitrate over basic workplace disputes. This includes
weekend pay, floating nurse assignments, mandatory nurse overtime,
mandatory physician weekend and evening duty, access to survey data for
setting nurse locality pay and physicians' market pay, exclusion from
groups setting physicians' market pay, and similar concerns. This would
seem to allow VA managers to undermine Congressional intent from law
passed in recent years to ensure that nurse and physician pay are
competitive with the private sector and to ensure nurse work schedules
are competitive with local markets.
Interestingly, given the VA's interpretation of current laws, these
specific health care professionals are not afforded the same rights as
employees who they work side-by-side with every day. For instance,
Licensed Practicing Nurses (LPN) and Nursing Assistants (NA) can
challenge pay and scheduling policies, while RN's cannot. This simply
makes no sense to us.
H.R. 4463, the ``Veterans Health Care Quality Improvement Act''
PVA supports H.R. 4463, the ``Veterans Health Care Quality
Improvement Act.'' We certainly appreciate the underlying intent of
this bill which is to ensure that the health care provided by the VA is
the very best available. Section 2 of the legislation defines standards
that must be met for physicians to practice in the VA. It requires the
disclosure of certain information pertaining to the past performance of
a physician and requires the Director of each Veterans Integrated
Service Network (VISN) to investigate any past disciplinary or medical
incompetence issues of physicians to be hired.
We would like to draw attention to one particular provision in
Section 2 that we believe could be problematic. Specifically, the
legislation calls for a physician to be licensed to practice in the
state in which the medical facility he or she is currently working in
is located. We believe that this may be an unreasonable expectation and
may make it more difficult for the VA to hire physicians, particularly
in specialized care fields. This provision addresses a problem that we
do not think actually exists. When hiring doctors, or any health care
professionals, a VA facility should properly investigate and scrutinize
the professional history of that individual. Whether or not a doctor is
licensed in a state has no bearing on whether or not the VA is properly
vetting individuals to be hired. Moreover, we would hate to see a
situation created where a VA facility is unable to hire a critical
physician who provides care in one of VA's specialized services simply
because he or she does not have an in-state license, particular if that
doctor is otherwise qualified.
PVA supports Section 3 of H.R. 4463 that requires the Under
Secretary for Health to designate a national quality assurance officer
and a quality assurance officer for each VISN. This establishes a
quality-assurance program for the health care system and provides a
method for VA health care workers to report incidents of inconsistency.
We believe that one of the keys to high quality health care services is
an affective quality assurance program. This program could be
beneficial for improving accountability within the health care system.
We likewise support Section 4 of the legislation that offers
incentives to attract physicians to work in the VA health care system.
It also encourages the VA to recruit part time physicians from local
medical schools. PVA has expressed concern in the past that the VA is
struggling to attract high quality physicians, particularly to
specialized services like spinal cord injury care, blind
rehabilitation, and mental health.
H.R. 5888
H.R. 5888 will expand eligibility for emergency medical care at the
VA for some veterans. Currently, veterans who have a secondary
insurance provider that pays a portion of medical expenses in the event
of an emergency do not have the balance of their medical expenses
covered by the VA. This proposed legislation will eliminate that
situation. It will prevent the VA from denying payment for emergency
service at non-VA hospitals when a veteran is partially covered by the
secondary insurance. PVA supports this legislation.
H.R. 6114, the ``SUNSET Act''
H.R. 6114 repeals the requirement that HIV testing can be done only
with the signature consent of the individual. This provision will allow
the VA to be compliant with Centers for Disease Control (CDC)
guidelines for HIV testing. PVA has no specific position on this
legislation.
H.R. 6122, the ``Veterans Pain Care Act''
PVA supports H.R. 6122, the ``Veterans Pain Care Act.'' This
legislation would require the VA to develop and implement a
comprehensive policy for managing pain care for veterans enrolled in
the VA health care system. PVA believes that comprehensive pain care is
not consistently provided across the entire system. We have seen
firsthand the benefits of pain care programs as each VA facility that
supports a spinal cord injury (SCI) unit also maintains a pain care
program. Veterans with spinal cord injury know all to well the impact
that pain, including phantom pain, can have on their daily life. The
pain care programs that SCI veterans have access to have greatly
enhanced their rehabilitation and improved their quality of life.
The one caution we would offer is an expectation that every
facility in the VA should have a pain care program. While we understand
this would be the most preferred outcome, we are not sure this would be
reasonable. We see no reason why pain care and management cannot be
handled in some fashion similar to the hub-and-spoke model used by the
VA to provide certain types of specialized care, including spinal cord
injury care. However, this suggestion does not mean that the VA cannot
have a comprehensive, system-wide policy for pain care.
Mr. Chairman and members of the Subcommittee, PVA would once again
like to thank you for the opportunity to provide our views on this
important legislation. We look forward to working with you to continue
to improve the health care services available to veterans.
Thank you again. We would be happy to answer any questions that you
might have.
Statement of Dennis M. Cullinan, Director,
National Legislative Service, Veterans of Foreign Wars of the United
States
MR. CHAIRMAN AND MEMBERS OF THIS SUBCOMMITTEE:
First under discussion today is H.R. 4089, addressing VA employee's
collective bargaining rights. Specifically, it repeals specified
exceptions to rights of certain Department of Veterans Affairs (VA)
employees to engage in collective bargaining. It further requires a
final decision of the VA with respect to the review of an adverse
personnel action against a VA employee to be issued not later than 60
days after such action has been appealed. Subjects such decision to
judicial review in the appropriate U.S. District Court or, if the
decision is made by a labor arbitrator, in the U.S. Court of Appeals
for the Federal Circuit. The VFW has no position on this legislation.
Next under review is H.R. 4463, entitled the ``Veterans Health Care
Quality Improvement Act.'' This bill directs the Secretary of Veterans
Affairs to prescribe standards for appointment and practice as a
physician within the Veterans Health Administration (VHA) of the
Department of Veterans Affairs (VA). This bill requires: (1) applicants
to provide certain information, including each lawsuit, civil action,
or other claim against the individual for medical malpractice or
negligence, and their results; (2) each appointee to disclose any
judgments against the individual for medical malpractice or negligence
and any payments made; and (3) physicians already employed within the
VHA to disclose such information. It also prohibits a new appointment
without: (1) approval of the regional director of the Veterans
Integrated Services Network (Network) in which the individual will
serve; (2) board certification in the specialties in which the
individual will practice; and (3) a license to practice medicine in
that state.
It requires: (1) the VHA's Under Secretary of Health to designate a
national Quality Assurance Officer for the VHA quality assurance
program; (2) each Network regional director to appoint a quality
assurance officer; and (3) the director of each VHA medical facility to
appoint a quality assurance officer.
The bill directs the Secretary to review VA policies for
maintaining health care quality and patient safety at VA medical
facilities.
Additionally the Secretary, in order to recruit and retain VHA
physicians in hard-to-fill positions, must: (1) repay certain
educational loans for individuals who agree to serve for at least three
years as a VHA physician; (2) reimburse tuition for medical students
who agree to serve as a VHA physician after such education; and (3)
enroll in the Federal Employees Health Benefits Program an individual
who agrees to serve as a VHA physician for at least five days per
month. Encourages the Secretary to undertake additional incentives to
encourage individuals to serve or practice as VHA physicians.
The VFW supports this legislation to both ensure higher quality VA
health care and the enforcement of stringent, uniform professional
standards throughout the system. This bill also addresses the
recruitment and retention of health care professionals in hard to fill
specialty areas, something we view as being vital. We would, however,
voice our concern regarding section (2)(g) requiring VA doctors to be
licensed within each state where they practice. VA, similar to the DoD
health care, is a federal system where such an approach would be
neither appropriate nor practical. We are very concerned that this
approach would result in severely limiting mobility within the system
to the detriment of veteran patients. For example a particular
cardiologist working at the Buffalo, NY VAMC whose services were at
once urgently needed at the Cleveland, OH VAMC could be prevented from
acting under this section. We believe that the other safe-guards and
the much enhanced vetting process established by this bill will well
meet the need for the enforcement of stricter professional standards.
We would voice our strong support for H.R. 5888, to expand veteran
eligibility for reimbursement by the Secretary of Veterans Affairs for
emergency treatment furnished in a non-Department facility. This bill
would correct a unjust anomaly under law where by a veteran with health
insurance that covers a portion of an emergency medical procedure at a
non-VA facility will be saddled with the remaining cost whereby a
veteran with no health insurance is left debt free under the same
circumstances. Not only is this a gross inequity penalizing, for
example, veterans who must carry insurance to provide for their
families, it is also a perverse disincentive for veterans in general to
carry any medical insurance at all. We urge this bill's swift
enactment.
The VFW also lends its support to H.R. 6114, the ``Simplifying and
Updating National Standards to Encourage Testing of the Human
Immunodeficiency Virus of 2008'' or ``SUNSET Act of 2008.'' It is our
view that the instant statute is outdated in requiring 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. This
impedes VA's ability to identify positive cases that should be
addressed with medical intervention as early as possible. As a result,
many infected patients unknowingly suffer very serious medical
complications that could have been prevented as well as spreading the
virus to their partners. HIV no longer carries the stigma that was
attached to it when this stature was enacted and testing for HIV
infection in routine clinical settings no longer merits extra measures
VA is now required of by law. Again, we support this bill.
The VFW supports H.R. 6122, the ``Veterans Pain Care Act of 2008.''
This bill directs the Secretary of Veterans Affairs to develop and
implement a comprehensive policy on the management of pain experienced
by veterans enrolled for health care services provided by the
Department of Veterans Affairs. Pain management is an essential
component of modern medical care as well as being absolutely key in
assuring the best possible quality of life. Given the pain associated
with the terrible traumatic injuries suffered by our men and women in
uniform fighting in places like Iraq and Afghanistan, this issue is
particularly compelling. We also appreciate and value the inclusion of
the VSO's in the consultative process with the Secretary in
periodically reviewing and revising VA's pain management policy.
Mr. Chairman, this concludes my statement. I would be happy to
answer any questions that you or any member of your Subcommittee may
have.
MATERIAL SUBMITTED FOR THE RECORD
DEPARTMENT OF VETERANS AFFAIRS
Veterans Health Administration
Washington DC 20420
IL 10-2005-017
In Reply Refer To: 13
September 2, 2005
UNDER SECRETARY FOR HEALTH'S INFORMATION LETTER
NEED FOR ROUTINE HUMAN IMMUNODEFICIENCY
VIRUS (HIV) RISK ASSESSMENT AND TESTING
1. This Information Letter provides information regarding the
importance of offering every veteran under the care of the Department
of Veterans Affairs (VA) the opportunity to have a voluntary test for
Human Immunodeficiency Virus (HIV) and to periodically discuss and
evaluate HIV risk with a knowledgeable VA health care professional.
2. Background
a. Advances in medical treatment over the past decade have
resulted in most HIV-infected individuals living long lives free of
opportunistic infections and other complications of the Acquired Immune
Deficiency Syndrome (AIDS).
b. Despite advances in HIV therapy, patients who are diagnosed
only when they become severely immunosuppressed may still experience
otherwise preventable morbidity and mortality as a result of delayed
diagnosis. Research in VA settings has confirmed that there are missed
opportunities for timely diagnosis and treatment of HIV infection.
1. In a blinded seroprevalence study at six VA sites, funded
by the VA Quality Enhancement Research Initiative (QUERI), previously
undetected HIV infection was present in 0-1.7 percent of inpatients and
0.3-2.9 percent of outpatients (see subpar. 4a).
2. In another VA QUERI research study of four facilities
between 1995 and 2000, fewer than half of patients with known risk
factors documented in the medical record had been HIV tested. (see
subpar. 4b).
3. From research conducted as part of the National Institutes
of Health-funded Veterans Aging Cohort study, 50 percent of newly HIV
diagnosed patients in VA between 1998 and 2002 had CD4 lymphocyte
counts of less than 200 cells per cubic millimeter (indicating advanced
levels of immune suppression) at the time of diagnosis, and 48 percent
of these suffered an AIDS-related complication during the first year
after diagnosis. These patients had, on average, 3.7 years of VA care
before diagnosis, indicating that there were missed opportunities to
make diagnoses at a stage when HIV treatment could have prevented many
of the complications experienced by these patients (see subpar. 4c).
4. Among VA patients with known hepatitis C infection,
approximately two-thirds have never been tested for HIV despite the
significant overlap in epidemiology and risk factors (data from VA
Hepatitis C Case Registry).
c. The Centers for Disease Control and Prevention (CDC)
estimates that approximately 40,000 new HIV infections occur every year
in the United States (U.S.) and that many of these are the result of
sexual or drug use contact with individuals who are unaware of their
own HIV infection. Knowledge of one's HIV infection status can be a
powerful motivator to encourage behavior change that decreases risk of
infection to others. The CDC has recommended that HIV risk assessment
and testing become a part of routine medical care (see subpar. 4d).
d. Two recently published independent cost-effectiveness
studies concluded that routine HIV screening, even in low prevalence
populations, should be cost effective based on avoided clinical
complications resulting from decreased transmission (see subpar. 4e and
subpar. 4f).
e. The U.S. Preventive Services Task Force (USPSTF) recently
issued guidelines including a strong recommendation that clinicians
screen for HIV in all adolescents and adults at increased risk for HIV
infection (see subpar. 4g).
f. HIV testing in VA is governed by Federal statutes and
regulations that require signature consent and pre-and post-test
counseling for HIV testing. Within these parameters, considerable
opportunities exist to make HIV testing more routine and accessible.
3. Recommendations. Given the great opportunity to prevent
morbidity and mortality, to benefit the health of veterans and non-
veteran communities, and to make effective use of VA health care
resources, all VA facilities and health care providers need to develop
and adopt strategies to decrease the number of veterans who are unaware
of their HIV infection status. Traditional risk-identification
strategies may be ineffective, and systems designed many years ago to
carefully control HIV counseling and testing may no longer be necessary
or desirable. Some or all of the following strategies may be useful:
a. Encourage all providers in primary care, mental health, and
substance use treatment settings to routinely engage patients in
discussions of HIV risk and to offer testing to all veterans who are at
risk for HIV, to women veterans who are pregnant or are considering
pregnancy, and to any veteran who wishes to be tested. NOTE: For a
detailed discussion of HIV transmission and risk, refer to the VA HIV
Prevention Handbook (http://vaww.vhaco.va.gov/aidsservice/prevention/
handbook.htm). For additional information on HIV testing in VA, refer
to the Frequently Asked Questions document on the Web site of VA's
Public Health Strategic Health Care Group (http://vaww.vhaco.va.gov/
aidsservice/consent/testingFAQ.htm.
b. Make voluntary HIV testing a routine part of the initial
assessment in care settings where the prevalence of HIV risk is
expected to be high, such as viral hepatitis (B&C) clinics, substance
use treatment programs, sites where sexually transmitted diseases are
treated, and programs for homeless veterans. Implementation of routine,
voluntary HIV testing in settings where expected HIV prevalence is
lower, such as primary care clinics, is likely to be cost effective as
well (see subpar. 4b and subpar. 4c).
c. Work with facility and Veterans Integrated Services Network
(VISN) laboratory leadership to implement rapid testing technologies in
settings where the logistics of a veteran returning for test results
and post-test counseling creates an obstacle for HIV testing.
d. Incorporate Registered Nurses and other non-physician
medical professionals who are familiar with VA HIV testing policies and
procedures in the process of discussing HIV risk assessment and
testing.
e. Allow patients to request testing without requiring a
detailed risk assessment.
f. Conduct reviews of recent HIV diagnoses to identify
opportunities missed for earlier diagnosis.
4. References
a. Owens DK, et al. Medical Decision Making 2003; 23:569.
b. Owens DK, et al. Medical Decision Making 2002; 22(6): 534.
c. Gandhi NR, et al. Robert Wood Johnson Clinical Scholars
Program National Meeting. Tucson, 2004.
d. Center for Disease Control and Prevention. Division of HIV/
AIDS Prevention. http://www.cdc.gov/hiv/partners/ahp_program.htm.
e. Sanders GD, et al. New England Journal of Medicine, Volume
352, pp. 570-85. Feb. 10, 2000.
f. Paltiel AD, et al. New England Journal of Medicine, Volume
352, pp. 586-95. Feb. 10, 2005.
g. U.S. Preventive Services Task Force. Screening for HIV:
Recommendation Statement. AHRQ Publication No. 05-0580-A, July 2005.
Agency for Healthcare Research and Quality, Rockville, MD. http://
www.ahrq.gov/clinic/uspstf05/hiv/hivrs.htm.
Jonathan B. Perlin, M.D., Ph.D., MSHA, FACP
Under Secretary for Health
DISTRIBUTION: CO: E-mailed 9/8/05
FLD: VISN, MA, DO, OC, OCRO, and 200--E-mailed 9/8/
05
Committee on Veterans' Affairs
Subcommittee on Health
Washington, DC.
August 27, 2008
Honorable James B. Peake, M.D.
Secretary
U.S. Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
Dear Secretary Peake:
On Thursday, June 5, 2008, Dr. Gerald M. Cross, Principal Deputy
Under Secretary for Health, Veterans Health Administration, testified
before the Subcommittee on Health on H.R. 4089, H.R. 4463, and H.R.
5888, H.R. 6114, and H.R. 6122.
As a followup to the hearing, I request that Dr. Cross respond to
the following questions in written form for the record:
1. What collective bargaining rights does current law provide for
title 38 employees?
2. At the Subcommittee's May 22, 2008 hearing on Human Resources
Challenges within the Department of Veterans Affairs (VA), the Nurses
Association of Veterans Affairs (NOVA) expressed concern for patient
safety if matters relating to ``direct patient care'' and ``clinical
competence'' were included in collective bargaining rights. In your
view, are these valid concerns? If so, why?
3. The Secretary is held responsible for the quality of care
provided to veterans. What impact would transferring the Secretary's
authority for direct patient care and clinical competency
determinations to a non-clinical third party who is not accountable
have on veterans' health care?
4. Under title 5, employee compensation cannot be subject to
collective bargaining. Would H.R. 4089 allow unions to bargain over the
amount of a title 38 employee's compensation? What other exceptions are
available to collective bargaining under title 5 that would be
authorized under title 38, and what effect would these provisions have
on our veterans?
5. Proponents of H.R. 4089 believe that VA's policy regarding
collective bargaining rights negatively affects recruitment and
retention. In your view, is this a valid concern? Please explain. What
other factors affect VA's ability to recruit and retain health care
professionals?
6. What benefits are available to title 38 employees that may not
be available in the private sector, and/or under title 5 authorities?
7. Would H.R. 4089 have an impact on VA's peer review system?
Please explain.
8. In the Office of Inspector General (IG) January 28, 2008
report, Quality of Care Issues, VA Medical Center, Marion, Illinois,
the IG recommended the Under Secretary for Health explore the
feasibility of implementing a process to independently identify all
State licenses for VA physicians. Please provide the Subcommittee an
update on the status of this and other patient safety and quality
management recommendations from this report.
9. Gaps were found in both the 2004 and 2006 GAO reviews of
credentialing and privileging at VA medical facilities. What steps has
VA taken to ensure that each medical provider is fully credentialed and
privileged?
10. What can be done to improve VA's system to verify the
qualifications of physicians currently employed with the VA?
11. At a minimum of every two years, VA physicians are required to
resubmit their applications for clinical privileges, and a physician
who fails to disclose the requested information on license termination
or surrender for cause may be terminated. How many VA physicians have
been terminated for failure to disclose this required information?
12. How does VA's current application process protect patient
safety? How can this process be improved to further protect patient
safety?
The attention to these questions by the witnesses is much
appreciated, and I request that they be returned to the Subcommittee on
Health no later than close of business, 5:00 p.m., Friday, September
26, 2008.
Sincerely,
Jeff Miller
Ranking Republican Member
__________
Questions for the Record
Hon. Jeff Miller, Ranking Republican Member
Subcommittee on Health, House Committee on Veterans' Affairs
June 5, 2008
H.R. 4089, H.R. 4463, and H.R. 5888, H.R. 6114 and H.R. 6122
Question 1: What collective bargaining rights does current law
provide for title 38 employees?
Response: Current law allows title 38 employees the right to
bargain and grieve anything title 5 employees may grieve with the
following exceptions: (1) professional conduct and competence issues;
(2) peer review; or (3) the establishment, determination, or adjustment
of employee compensation under title 38.
Question 2: At the Subcommittee's May 22, 2008 hearing on Human
Resources Challenges within the Department of Veterans Affairs (VA),
the Nurses Organization of Veterans Affairs (NOVA) expressed concern
for patient safety if matters relating to ``direct patient care'' and
``clinical competence'' were included in collective bargaining rights.
In your view, are these valid concerns? If so, why?
Response: VA concurs with NOVA's concerns related to the impact on
patient safety that would result from a direct supervisor's lack of
authority to determine whether or not an employee is clinically
competent and the ability to take immediate action to ensure patient
safety. Clinical competence of a professional nurse should only be
determined by another member of the nursing profession. VA nursing
executives are responsible for determining the clinical competence of
their registered nurses, and are accountable for taking action (with
input from nurse managers and nursing education staff) to ensure
appropriate care is being delivered to veterans. In addition, the
decision to initiate new clinical services, programs, training or
service hours must remain the sole prerogative of the VA medical center
(VAMC) senior leadership. To involve national or local bargaining units
may result in delays in necessary clinical actions.
Question 3: The Secretary is held responsible for the quality of
care provided to veterans. What impact would transferring the
Secretary's authority for direct patient care and clinical competency
to a non-clinical third party who is not accountable have on veteran's
health care?
Response: Transferring the Secretary's authority for direct patient
care and clinical competency to a non-clinical third party who is not
accountable for veteran's health care, as proposed by H.R. 4089, would
seriously compromise the Secretary's ability to meet the statutory
responsibility for assuring the quality and safety of care provided to
veterans. It would transfer determinations about direct patient care
and the clinical competency of Veterans Health Administration (VHA)
clinicians to independent third-party labor arbitrators. There is no
assurance that these arbitrators would have any medical training or
experience in clinical management; and they are not accountable for the
quality and safety of care provided to veterans.
Question 4: Under title 5, employee compensation cannot be subject
to collective bargaining. Would H.R. 4089 allow unions to bargain over
the amount of title 38 employee's compensation? What other exceptions
are available to collective bargaining under title 5 that would be
authorized under title 38, and what effect would these provisions have
on our veterans?
Response: H.R. 4089 would allow unions to bargain over the amount
of title 38 employees' compensation. It would also allow title 38
employees to bargain over certain aspects of employee discipline which
are governed by Federal regulations for title 5 employees. The
potential for collective bargaining over title 38 discretionary
compensation would not only be at odds with the norm within the Federal
government, it would also create an undesirable precedent for Federal
pay generally. Such significant changes in VA's collective bargaining
obligations could adversely impact VA's budget and management rights
and would also skew the current balance maintained between providing
beneficial working conditions for title 38 professionals and meeting
patient care needs. In addition it could lead to increased arbitration
costs for VA.
Question 5: Proponents of H.R. 4089 believe that VA's policy
regarding collective bargaining rights negatively affects recruitment
and retention. In your view, is this a valid concern? Please explain.
What other factors affect VA's ability to recruit and retain health
care professionals?
Response: VA has no data to support the contentions made by the
American Federation of Government Employees (AFGE) that recruitment and
retention of our professional health care employees is negatively
impacted by collective bargaining rights, nor has AFGE provided any
evidence to support this contention.
VA has no more trouble filling positions than private hospitals,
and turnover is similar or lower; therefore, we do not agree that
bargaining rights are a determining factor. VA experiences the same
challenges filling positions that private sector hospitals face; job
opportunities for health care providers exceed the number of qualified
candidates in many occupations and an inequity in geographical
distribution of health care workers particularly increases recruitment
challenges in rural areas.
VA's generous benefits packages and title 38 pay systems, such as
the physician and dentist pay system and the nurse locality pay system,
have made VA more competitive and improved our ability to recruit and
retain health care professionals.
Question 6: What benefits are available to title 38 employees that
may not be available in the private sector, and/or under title 5
authorities?
Response: VA employees under title 38 and the title 38 hybrid
systems enjoy the same robust benefits--health, life insurance and
retirement benefits package--offered to all Federal government
employees. Pure title 38 employees receive 5 weeks per year of paid
vacation from the date of appointment as a Federal employee. This
exceeds the title 5 benefit for vacation time. Title 38 employees are
able to carry over the highest rates of annual leave (685 hours) year
to year, which is greater than most private sector employers allow. All
Federal employees may carry over sick leave with no limit.
Congress has established pay systems for title 38 employees that
are more flexible than the General Schedule, which covers title 5
employees. The nurse locality pay systems allow each VHA facility to
establish pay and specialty schedules for nurses based on surveys of
the pay practices of other employers in the area. This allows each
facility to structure its pay schedules to be more competitive. The
physician and dentist pay system allows VA to establish national pay
ranges for various specialties after consulting national pay surveys.
Local facilities can then set individual pay for each physician and
dentist based on local market conditions and the individual's
qualifications and credentials. VHA facilities can also offer special
pay in the range of $10,000 to $25,000 for nurse executives. This
flexibility has made it possible for facilities to be more competitive
in recruiting and retaining highly qualified individuals in these
critical positions. The Office of Personnel Management has delegated
authority to VA that allows VHA facilities to establish special salary
rates for title 38 and hybrid title 38 occupations when necessary to
keep the local pay rates competitive in its marketplace. This authority
is generally not available to other agencies for title 5 positions.
Additionally, VA health care providers' malpractice liability is
covered by the Federal Torts Claims Act and employees cannot be
individually sued for actions extending from ``conscientious''
performance of their Federal duties.
Another advantage to Federal employment under both the title 38 and
title 38 hybrid personnel systems is a level of job security during
uncertain times that does not necessarily apply to health care workers
in the private sector.
Title 38 and hybrid title 38 employees are eligible for special
advancement for achievement awards for their outside professional
accomplishments, self-development and for taking external leadership
roles in the advancement of their occupations. These awards, consisting
of a one to five step pay increase, depend on the specific professional
accomplishment. These awards are not available to title 5 employees.
Title 38 employees may receive premium pay based on their actual rate
of pay rather than the capped GS-10 rate for title 5 employees.
Additionally, title 38 nurses have their unused sick leave counted in
the calculation of their retirement benefits (not to determine
eligibility for retirement).
Question 7: Would H.R. 4089 have an impact on VA's peer review
system? Please explain.
Response: H.R. 4089 would subject peer review processes and
decisions to compromise and/or reversal through collective bargaining
and negotiated grievance procedures. VHA uses peer review in a number
of ways. Professional standards boards evaluate the qualifications and
credentials of title 38 employees and make recommendations for
appointments and advancements. Compensation panels perform peer reviews
to recommend compensation for physicians and dentists based on the
providers' individual credentials and specialty assignments. Peer
review is also used to evaluate questions related to patient care and
providers' clinical competency in a number of situations, through the
Disciplinary Appeals Boards to which providers may appeal disciplinary
actions that involve patient care or clinical competency issues.
The purpose of these peer review processes is to ensure that
decisions about patient care and clinical competence issues are made by
qualified clinicians rather than by laypersons (judges, arbitrators,
union officials) that lack the clinical training and expertise
necessary to make such decisions.
Subjecting the peer review processes and decisions to collective
bargaining would severely limit the effectiveness of the peer review
processes. It would transfer current VHA clinicians' peer review and
the clinical competency of VHA clinicians to independent third-party
labor arbitrators.
Question 8: In the Office of Inspector General (IG) January 28,
2008 report, Quality of Care Issues, VA Medical Center, Marion
Illinois, the IG recommended the Under Secretary for Health explore the
feasibility of implementing a process to independently identify all
State licenses for VA physicians. Please provide the Subcommittee an
update on the status of this and other patient safety and quality
management recommendations from this report.
Response: In July 2008, VHA implemented an automated query to the
Federation of State Medical Boards (FSMB) to identify all current and
previously held physician State medical licenses. VHA worked on
developing this process with FSMB and is the first health care system
in the United States to use this assessment tool. As of July 2008, the
automated query is complete and is being used.
Question 9: Gaps were found in both the 2004 and 2006 GAO reviews
of credentialing and privileging at VA medical facilities. What steps
has VA taken to ensure that each medical provider is fully credentialed
and privileged?
Response: VHA Directive 2006-067, Credentialing of Health Care
Professionals, was issued on December 22, 2006, to address the
Government Accountability Office (GAO) recommendations in the March 31,
2004 report VA Health Care: Improved Screening of Practitioners Would
Reduce Risk to Veterans (GAO-04-566). The GAO report contained four
recommendations: 1) require facility officials to contact State
licensing boards and national certifying organizations to include all
State licenses and national certificates held by applicants and
employed practitioners, 2) expand the query of the Healthcare Integrity
and Protection Data Bank (HIPDB) to include all licensed practitioners
that VA intends to hire and periodically query this database for
continued employment, 3) require fingerprint checks for all health care
practitioners who were previously exempted from background
investigations and who have direct patient care access, and 4) require
fingerprint checks for all health care practitioners who were
previously exempted from background investigations and who have direct
patient care access. GAO considers all but one recommendation contained
in this report implemented. Recommendation to expand the query of the
HPIBD to include all licensed practitioners that VA intends to hire and
periodically query this database for continued employment was partially
implemented. VA directs all of its medical facilities to query the
HIPDB for all applicants prior to employment and most volunteers prior
to being given an assignment. VA's requirement to query the HIPDB for
all applicants and new volunteers goes beyond GAO's recommendation to
query on those applicants who are licensed. VA has not begun to query
HIPDB on a periodic basis for continued employment as recommended. As
of July 2008, VA is continuing to work on processes and procedures to
allow this screening to occur automatically and expand it to include
other VA databases.
VHA Directive 2006-067, Credentialing of Health Care Professionals,
was issued on December 22, 2006, to address the Government
Accountability Office (GAO) recommendations in the March 31, 2004
report VA Health Care: Improved Screening of Practitioners Would Reduce
Risk to Veterans (GAO-04-566).
GAO issued a report on May 25, 2006, VA Health Care: Steps Taken to
Improve Practitioner Screening, but Facility Compliance with Screening
Requirements Is Poor (GAO-06-544) containing two recommendations. GAO
recommended that VA standardize a method for documenting facility
officials' review of fingerprint-only background investigation results
and decisions regarding suitability to work in VA medical facilities.
GAO considers this recommendation implemented by the issuance of VA
directive and handbook 0710 on May 18, 2007. GAO's second
recommendation that VA expand the Office of Human Resource Management
oversight program to include a review of VA facilities' compliance with
screening requirements for all types of salaried and non-salaried
health care practitioners is considered partially implemented. VA's
Office of the Medical Inspector has developed a compliance assessment
tool which it will pilot test at the Baltimore VA medical center, then
refine the tool and use it at eight other medical centers. VA's Office
of Human Resources Management will continue to review facility
compliance with VA's personnel screening requirements as part of its
on-site HR inspections.
Question 10: What can be done to improve VA's system to verify the
qualifications of physicians currently employed with the VA?
Response: Listed below are recent enhancements made to improve VA's
credentialing process.
At the time of initial or re-appointment processing, all
VHA clinicians now sign a revised release of information form allowing
the agency to request not only public information, but also information
regarding any open/pending allegations/charges from State Licensing
Boards.
More than 3,200 senior medical staff leaders have
completed focused training on roles and responsibilities of medical
staff leaders and the use of provider-specific performance profiles.
VHA has worked with the FSMB to develop an automated
system to identify all current and previously held physician State
medical licenses. This system was implemented in July 2008. When used
in combination with the revised practitioner Release of Information,
VHA has become the first health system in the United States to use a
comprehensive assessment of all State Licensing Board actions
regardless of the State of completion.
Additional enhancements to our credentialing and privileging
systems and policies are being implemented. This includes mandatory
participation in the National Practitioner Data Bank-Health Integrity
and Protection Data Banks proactive disclosure service (tentatively
slated for November 2008), and developing guidance and templates to
document local facility current privileging processes and the data/
materials used for confirmation of competency (slated for release
October 2008).
Question 11: At a minimum of every two years, VA physicians are
required to resubmit their application for clinical privileges, and a
physician who fails to disclose the requested information on license
termination or surrender for cause may be terminated. How many VA
physicians have been terminated for failure to disclose this required
information?
Response: VHA's Office of Quality and Performance is aware of one
practitioner being removed due to failure to fully disclose all
information concerning credentials. These cases are managed locally, so
it is possible that others have been terminated without being reported
to the national level.
Question 12: How does VA's current application process protect
patient safety? How can this process be improved to further protect
patient safety?
Response: In support of quality, effective, and safe patient care,
our application process includes primary-source verification of:
education;
training;
all licenses ever held;
confirmation of active, current, unrestricted licensure;
references who can attest to current competency;
experience related to requested privileges;
status of privileges held at other institutions;
documentation of all actions (licensing, malpractice,
clinical practice reviews);
National Practitioner Data Bank (NPDB) query;
Federation of State Medical Boards (FSMB) query (results
list all States where licenses have been held); and
FSMB Disciplinary Alert Service (ongoing monitoring of
any actions against any State license).
For confirmation of competency, focused professional practice
evaluations (FPPE) are conducted for all practitioners initially
granted privileges at any facility or granted a new privilege for the
first time. These reviews may include chart review, monitoring clinical
practice patterns, simulation, proctoring, external peer review, or
discussion with other individuals involved in the care of each patient.
Results of FPPE and ongoing monitoring of performance allow the
facility to identify and address, in a timely manner, practice patterns
that impact quality of care and patient.
Additionally, all facilities have been requested by the Deputy
Under Secretary for Health for Operations and Management to review all
privileges performed at their facilities, confirm adequacy of resources
for all facility privileges, and confirm current competence for
practitioners who have been granted privileges.
The review of each practitioner's current competence is documented
by the service chief in the provider profile. This documentation
includes the information that was used as evidence of current
competence and any monitoring and/or followup that is required. This
information is fully evaluated and documented by the facility's Medical
Staff Executive Committee.
Updated VHA Handbook 1100.19 (pending publication) also clarifies
practitioner-specific information to be compiled in the provider
profile and evaluated as part of the facility's ongoing monitoring, as
well as for the reappraisal and privileging process.