[House Hearing, 110 Congress]
[From the U.S. Government Printing 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

                              ----------                              


                         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.
---------------------------------------------------------------------------
    \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.)
---------------------------------------------------------------------------
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.