[Senate Report 110-263]
[From the U.S. Government Publishing Office]
Calendar No. 579
110th Congress Report
SENATE
2d Session 110-263
======================================================================
VETERANS EMERGENCY CARE FAIRNESS ACT OF 2007
_______
February 25, 2008.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany S. 2142]
The Committee on Veterans' Affairs (hereinafter, ``the
Committee''), to which was referred the bill (S. 2142) to amend
title 38, United States Code, to require the Secretary of
Veterans Affairs to reimburse veterans receiving emergency
treatment in non-Department of Veterans Affairs facilities for
such treatment until such veterans are transferred to
Department facilities, and for other purposes, having
considered an amended version of the same, reports favorably
thereon, and recommends that the bill, as amended, do pass.
Introduction
On October 4, 2007, Committee member Senator Sherrod Brown
introduced S. 2142, the proposed ``Veterans Emergency Care
Fairness Act of 2008.'' On October 24, 2007, the Committee held
a hearing on pending veterans' health legislation at which
testimony on an amended version of S. 2142, among other bills,
was offered by: Michael J. Kussman, MD, MS, MACP, the
Department of Veterans Affairs' Under Secretary for Health;
Carl Blake, National Legislative Director, Paralyzed Veterans
of America; and Joy J. Ilem, Assistant National Legislative
Director, Disabled American Veterans. The witnesses expressed
support for S. 2142 on behalf of their respective
organizations. VA supported the legislation, and Under
Secretary Kussman indicated that VA was also working on
improving the reimbursement process for veterans receiving
emergency care at non-VA facilities.
Committee Meeting
After carefully reviewing the testimony from the foregoing
hearing, the Committee met in open session on November 14,
2007, to consider, among other legislation, an amended version
of S. 2142. The Committee agreed by voice vote to report
favorably S. 2142, as amended, to the Senate.
Summary of S. 2142 as Reported
S. 2142, as reported (hereinafter, ``the Committee bill''),
would amend sections 1725 and 1728 of title 38, United States
Code, to make reimbursement for emergency care received at non-
VA facilities mandatory for eligible veterans.
Section 2(a) would make the reimbursement of veterans for
emergency care received at non-VA facilities mandatory by
amending section 1725 of title 38. The amended text would also
clarify when VA's obligation to reimburse ends by more clearly
defining the conditions for transfers and patient
stabilization.
Section 2(b) would amend section 1728 of title 38 to
conform to section 1725 by making the provision mandatory. To
ensure consistency, ``care and services'' would be replaced by
``emergency treatment.'' A new subsection, subsection (c),
would also be added in order to use a consistent definition of
``emergency treatment,'' as defined in proposed new section
1725(f)(1).
Background and Discussion
The Committee bill was developed in response to the need
for clearer procedures for reimbursement by VA when veterans
receive emergency care at non-VA facilities.
Under current law, section 1728 of title 38 authorizes the
Secretary to pay the expenses incurred by a veteran for
emergency treatment services when delay of such services would
have been hazardous to the life or health of the veteran;
treatment of a service-connected disability; treatment of a
non-service-connected disability aggravating a service-
connected disability; treatment of any disability of a veteran
with a permanent and total disability; or for a covered
vocational rehabilitation purpose. Expenses incurred after the
medical emergency has ended, and after the point in time when
the veteran may be transferred safely to VA or another Federal
facility, may not be reimbursed. Pursuant to current section
1725, the Secretary may also reimburse a veteran for expenses
incurred for emergency treatment provided at a non-VA facility
for a non-service connected disability.
VA's interpretation of the existing authority for emergency
care reimbursement has created difficulties for veterans and
non-VA hospitals seeking reimbursement. A November 16, 2005, VA
Office of General Counsel memorandum supported a narrow
interpretation of the statutory authorities, particularly in
the context of an emergency that has terminated, thereby ending
the obligation to pay. VA's interpretation has tended to favor
the denial of reimbursement claims for continuing care where a
transfer attempt is made but VA does not have a bed available.
The problems with securing reimbursement can make transfers to
alternative (and potentially more suitable) facilities for
treatment difficult when VA does not have a bed available.
During a Committee field hearing in New Philadelphia, Ohio,
on May 29, 2007, chaired by Senator Brown, problems with the
current procedures were highlighted. Specifically, community
hospitals in Ohio reported encountering difficulty transferring
veterans to an appropriate VA Medical Center and subsequently
obtaining reimbursement following emergency care at these
facilities. Terry M. Carson, Chief Executive Officer of
Harrison Community Hospital, addressed the issue, testifying:
The problem that we experience has to do with
treating initial emergency/urgent situations and having
little success in being able to transfer veterans to
the appropriate Veterans' Hospital Center. Often, we
wait days to receive transfer approval, and it is not
uncommon for those approvals to be withdrawn during the
actual transfer, and change of direction mid-stream.
This testimony highlights the difficulties arising from the
current system, which reflects the ambiguities and uncertainty
of the existing statutory authorities.
Delays in the transfer from community to VA facilities can
jeopardize veterans' health, and place hospitals in the
position of being forced to proceed with treatments that would
otherwise have been provided by VA. By delaying or refusing the
acceptance of veteran transfers, VA adds unnecessary complexity
to the reimbursement process. The net result is difficulty for
veterans and the hospitals in receiving reimbursement for care.
Committee Bill
Section 2(a) of the Committee bill would amend section 1725
of title 38 in subsections (a)(1) and (f)(1). Subsection (a)(1)
would be amended by replacing ``may reimburse'' with ``shall
reimburse.'' This change would make reimbursement for emergency
care received at non-VA facilities mandatory for eligible
veterans, rather than at the discretion of the Secretary.
Subsection (f)(1) would be amended to provide greater
specificity regarding the termination of VA's obligation to
reimburse. The ambiguities that have driven the restriction of
VA's obligation to pay would be eliminated through the more
specific language proposed by the Committee bill, which would
specify that VA's obligation to reimburse terminates when the
veteran may be transferred safely from the private facility to
a VA hospital and the VA facility is capable of accepting the
transfer. Alternatively, if VA does not initially have a bed
available, VA's obligation to reimburse will terminate only
after the veteran is actually transferred to a VA or other
Federal facility, so long as the private facility made and
documented reasonable efforts to transfer the veteran when he
or she was first able to be transferred safely.
Section 2(b) of the Committee bill would amend section 1728
of title 38 so as to make that section, which relates to
reimbursement for the emergency treatment of service-connected
conditions, consistent with section 1725, as amended by section
2(a) of the Committee bill. Thus, reimbursement would also be
made mandatory under Section 1728. The existing criteria,
defining veteran eligibility for reimbursement for emergency
care services, would be carried over in the revised statutory
language.
In addition, section 2(b) would further amend section 1728
so as to strike the phrase ``care and services'' in current
subsection (b) of section 1728, and replace that phrase with
``emergency treatment.'' This proposed change is designed to
promote consistency between section 1725 and 1728 of title 38.
This goal of consistency is further reflected in the Committee
bill's proposed addition of subsection (c) to section 1728, to
adopt the same definition of ``emergency treatment'' that would
be established in section 1725(f)(1) of the Committee bill.
Committee Bill Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the CBO, estimates that enactment of
the Committee bill would increase spending by $20 million in
2008 and by $323 million over the 2009-2013 period. Enactment
of the Committee bill would not affect direct spending or
receipts, and would not affect the budget of state, local or
tribal governments.
The cost estimate provided by CBO, setting forth a detailed
breakdown of costs, follows:
Congressional Budget Office,
Washington, DC, January 16, 2008.
Hon. Daniel K. Akaka,
Chairman, Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2142, the Veterans
Emergency Care Fairness Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sunita
D'Monte.
Sincerely,
Peter R. Orszag,
Director.
Enclosure.
Summary: S. 2142 would require the Department of Veterans
Affairs (VA) to pay for the emergency care certain veterans
receive at non-VA medical facilities, or to reimburse veterans
if they have paid for that care. CBO estimates that
implementing S. 2142 would cost $20 million in 2008 and an
additional $323 million over the 2009-2013 period, assuming
appropriation of the estimated amounts. Enacting the bill would
not affect direct spending or revenues.
S. 2142 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2142 is shown in the following table.
The costs of this legislation fall within budget function 700
(veterans benefits and services).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------
2008 2009 2010 2011 2012 2013
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................... 22 52 58 65 73 82
Estimated Outlays............................................... 20 49 57 64 72 81
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
legislation will be enacted around the middle of fiscal year
2008, that the estimated amounts will be appropriated each
year, and that outlays will follow historical spending patterns
for the VA medical services program.
Under two different sections of law, VA currently has the
authority to reimburse certain veterans or to pay for emergency
care provided at non-VA facilities. S. 2142 would amend and
enhance those authorities. Based on information from VA, CBO
estimates that by requiring VA to pay for longer (on average)
lengths of stay in private medical facilities, the bill would
cost $20 million in 2008 and another $323 million over the
2009-2013 period, assuming appropriation of the estimated
amounts.
Reimbursements under current law
Under 38 U.S.C. 1725, VA may reimburse veterans or pay for
emergency treatment of a nonservice-connected condition, if VA
is the payer of last resort. Under this section of law,
emergency treatment is defined as care or services provided for
a medical emergency where a prudent layperson could reasonably
expect that a delay in seeking medical attention would be
hazardous to life or health. According to VA data on payments
made under 38 U.S.C. 1725, VA paid a total of $123 million in
2006--$103 million for inpatient treatment provided to about
18,200 veterans ($1,200 per day, for an average length of stay
of 4.7 days) and $20 million for ancillary care.
Under 38 U.S.C. 1728, VA may reimburse certain veterans
with service-connected conditions or those who are covered for
purposes of a vocational rehabilitation program if medical
professionals determine that a medical emergency exists. Data
from VA on payments made under 38 U.S.C. 1728 indicate that in
2006 VA paid $83 million for treatment provided to 7,800
veterans ($1,900 per day, for an average length of stay of 5.6
days).
Under both sections of current law, VA can make payments
only until the veteran's condition has stabilized and he or she
can be transferred safely to a VA or other federal facility,
regardless of whether any such facility is actually available
to accept such a transfer.
Additional reimbursements under S. 2142
S. 2142 would amend those authorities by establishing the
prudent layperson definition of emergency treatment for both
sections of law and requiring VA to pay for treatment until the
veteran is transferred to a VA or other federal facility, or
the veteran is otherwise discharged from the hospital. Under
the bill, some veterans who incur medical costs after they are
deemed to be stable but before they are transferred to a VA or
other federal facility would now be eligible for additional
payments from VA.
Data from the 2005 National Hospital Discharge Survey
indicate that male patients over age 45 who were admitted
through the emergency department stayed in the hospital for an
average of 5.4 days. CBO estimates that under the bill, the
average length of stay for which veterans would be reimbursed
would rise from 4.7 days to 5.4 days, and VA's costs under 38
U.S.C. 1725 would increase by $10 million in 2008 and by an
average of $30 million a year over the 2009-2013 period,
assuming appropriation of the estimated amounts. (Costs rise
sharply starting in 2009, because CBO assumes the bill would be
enacted in mid-2008.)
Based on information from VA, CBO estimates that under S.
2142, veterans who are eligible for reimbursement under 38
U.S.C. 1728--primarily veterans with service-connected
disabilities--would be reimbursed for hospital stays averaging
6.6 days. CBO also expects that by establishing a prudent
layperson definition of medical emergencies, the bill would
increase the number of eligible veterans by 5 percent each
year. Thus, CBO estimates that under the bill, costs under 38
U.S.C. 1728 would rise by $10 million in 2008 and by an average
of $35 million a year over the 2009-2013 period, assuming
appropriation of the estimated amounts.
Intergovernmental and private-sector impact: S. 2142
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal costs: Sunita D'Monte; Impact
on state, local, and tribal governments: Lisa Ramirez-Branum;
Impact on the private sector: Victoria Liu.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee has made an
evaluation of the regulatory impact that would be incurred in
carrying out the Committee bill. The Committee finds that the
Committee bill would not entail any regulation of individuals
or businesses or result in any impact on the personal privacy
of any individuals and that the paperwork resulting from
enactment would be minimal.
Tabulation of Votes Cast in Committee
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following is a tabulation of votes
cast in person or by proxy by members of the Committee at its
November 14, 2007, meeting. On that date, the Committee, by
voice vote, ordered S. 2142, as amended, reported favorably to
the Senate.
Agency Report
On October 24, 2007, Michael J. Kussman, MD, MS, MACP, the
Department of Veterans Affairs Under Secretary for Health,
appeared before the Committee and submitted testimony on, among
other things, the Veterans Emergency Care Fairness Act of 2007.
Excerpts of this statement are reprinted below:
Statement of the Views of the Administration
Michael J. Kussman, MD, MS, MACP, Under Secretary for Health for the
Department of Veterans Affairs
Good morning Mr. Chairman and Members of the Committee:
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 is Walter A.
Hall, Assistant General Counsel. I will address the five bills
on today's agenda and then I would be happy to answer any
questions you and the Committee members may have.
S. 2142 ``VETERANS EMERGENCY CARE FAIRNESS ACT OF 2007''
S. 2142 would make mandatory, standardize, and enhance the
two existing authorities the Secretary has to pay for expenses
incurred in connection with a veteran's receipt of emergency
treatment in a non-VA facility. The two authorities under which
the Secretary may currently pay these claims are discretionary
in nature (``may reimburse'' as opposed to ``shall reimburse'')
and cover different veteran populations and use different
standards to define a medical emergency.
As background, the Secretary is authorized to pay the
reasonable expenses incurred by a veteran for non-VA emergency
treatment of a service-connected disability, a non-service-
connected disability aggravating a service-connected
disability, any disability of a veteran with a permanent and
total disability, or for a covered vocational rehabilitation
purpose. In these claims, VA medical professionals must
determine whether a medical emergency existed (i.e., if there
was an actual emergency of such nature that delay in obtaining
treatment would have been hazardous to life or health).
Expenses incurred after the medical emergency has ended, that
is, after the point in time the veteran could have been
transferred safely to VA or another Federal facility, may not
be reimbursed.
The Secretary may also reimburse or pay a veteran for
expenses incurred for non-VA emergency treatment of a non-
service connected disability. In these claims, the law requires
use of a prudent layperson standard to determine the need for
the non-VA emergency treatment. Thus, if it turns out that the
veteran's condition was not an actual medical emergency, VA can
still pay the expenses if a prudent layperson would have
thought it reasonable for the veteran to seek immediate medical
treatment. This happens, for instance, when a veteran goes to
the nearest emergency room because of the belief he or she is
having a heart attack but turns out only to have a severe case
of heartburn. Similar to claims for service-connected
conditions, the Secretary is only authorized to pay for the
emergency treatment expenses, and the emergency ends at the
point the veteran can be transferred safely to a VA facility or
other Federal facility.
S. 2142 would amend both existing authorities by requiring
the Secretary to pay the expenses of any veteran who meets
eligibility criteria. It would also standardize these programs
by applying the prudent layperson definition of ``emergency
treatment'' in both situations. And most importantly it would
define ``emergency treatment'' as continuing until (1) the
point in time the veteran can be transferred safely to a VA or
other Federal facility, or (2) such time as a VA facility or
other Federal facility agrees to accept such transfer if, at
the time the veteran could have been transferred safely, the
non-VA provider makes and documents reasonable attempts to
transfer the veteran to a VA facility or other Federal
facility.
VA strongly supports S. 2142; effective emergency room
reimbursement has been an issue of concern to the Department.
In fact, VA is in the process of drafting regulations to
address these concerns within the authority it has under
current law.
It is VA's expectation that facilities aggressively work to
accept the transfer of a veteran in these situations. We are
aware, however, that there have been cases where VA has been
unable to find a facility that had the bed, capability, staff,
or resources needed to furnish the care required by the
veteran. In those cases, which we believe are the exception and
not the norm, the non-VA providers ultimately billed the
veterans for those expenses. This can impose a serious monetary
hardship for our beneficiaries.
S. 2142 would properly put the financial onus on the
Department to provide appropriate care either in the VA or
Federal system or at the non-VA facility. Enrolled veterans are
eligible for needed hospital or medical care. Good medical
practice demands we furnish such care in a manner that advances
a seamless continuum of care and reduces fragmentation of such
care. Clearly these goals are best achieved by bringing the
veteran into the VA health care system as soon as possible. In
those rare cases where VA cannot immediately agree to accept
the patient transfer, it would be entirely appropriate for VA
to be responsible for the expenses related to the veteran's
needed continued hospital care in the private facility until
the point VA can take over.
When VA initiated drafting regulations for this program
choice, it determined funds were available within the FY2008
President's Budget level for this expanded benefit.
As a final and more technical matter, I would like to
clarify that if a veteran currently meets the eligibility
criteria on which his or her claim is based, VA invariably pays
the claim. Thus, changing the Secretary's authority from
``may'' to ``shall'' for purposes of both types of claims would
have no practical effect. Nevertheless, we do not object to
such a change.
* * * * * * *
Changes in Existing Law Made by the Committee Bill, as Reported
In compliance with rule XXVI paragraph 12 of the Standing
Rules of the Senate, changes in existing law made by the
Committee bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
PART II--GENERAL BENEFITS
CHAPTER 17--HOSPITAL, NURSING HOME, DOMICILIARY, AND MEDICAL CARE
* * * * * * *
Subchapter III--Miscellaneous Provisions Relating to Hospital and
Nursing Home Care and Medical Treatment of Veterans
* * * * * * *
Sec. 1725. Reimbursement for emergency treatment
(a) General Authority.--
(1) Subject to subsections (c) and (d), the Secretary
[may reimburse] shall reimburse a veteran described in
subsection (b) for the reasonable value of emergency
treatment furnished the veteran in a non-Department
facility.
* * * * * * *
(f) Definitions.--For purposes of this section:
(1) The term ``emergency treatment'' means medical
care or services furnished, in the judgment of the
Secretary--
(A) when Department or other Federal
facilities are not feasibly available and an
attempt to use them beforehand would not be
reasonable;
(B) when such care or services are rendered
in a medical emergency of such nature that a
prudent layperson reasonably expects that delay
in seeking immediate medical attention would be
hazardous to life or health; and
[(C) until such time as the veteran can be
transferred safely to a Department facility or
other Federal facility.]
(C) until--
(i) such time as the veteran can be
transferred safely to a Department
facility or other Federal facility and
such facility is capable of accepting
such transfer; or
(ii) such time as a Department
facility or other Federal facility
accepts such transfer if--
(I) at the time the veteran
could have been transferred
safely to a Department facility
or other Federal facility, no
Department facility or other
Federal facility agreed to
accept such transfer; and
(II) the non-Department
facility in which such medical
care or services was furnished
made and documented reasonable
attempts to transfer the
veteran to a Department
facility or other Federal
facility.
* * * * * * *
Sec. 1728. Reimbursement of certain medical expenses
[(a) The Secretary may, under such regulations as the
Secretary shall prescribe, reimburse veterans entitled to
hospital care or medical services under this chapter for the
reasonable value of such care or services (including travel and
incidental expenses under the terms and conditions set forth in
section 111 of this title), for which such veterans have made
payment, from sources other than the Department, where--
[(1) such care or services were rendered in a medical
emergency of such nature that delay would have been
hazardous to life or health;
[(2) such care or services were rendered to a veteran
in need thereof
[(A) for an adjudicated service-connected
disability,
[(B) for a non-service-connected disability
associated with and held to be aggravating a
service-connected disability,
[(C) for any disability of a veteran who has
a total disability permanent in nature from a
service-connected disability, or
[(D) for any illness, injury, or dental
condition in the case of a veteran who
[(i) is a participant in a vocational
rehabilitation program (as defined in
section 3101 (9) of this title), and
[(ii) is medically determined to have
been in need of care or treatment to
make possible such veteran's entrance
into a course of training, or prevent
interruption of a course of training,
or hasten the return to a course of
training which was interrupted because
of such illness, injury, or dental
condition; and
[(3) Department or other Federal facilities were not
feasibly available, and an attempt to use them
beforehand would not have been reasonable, sound, wise,
or practical.]
(a) The Secretary shall, under such regulations as the
Secretary prescribes, reimburse veterans eligible for hospital
care or medical services under this chapter for the customary
and usual charges of emergency treatment (including travel and
incidental expenses under the terms and conditions set forth in
section 111 of this title) for which such veterans have made
payment, from sources other than the Department, where such
emergency treatment was rendered to such veterans in need
thereof for any of the following:
(1) An adjudicated service-connected disability.
(2) A non-service-connected disability associated
with and held to be aggravating a service-connected
disability.
(3) Any disability of a veteran if the veteran has a
total disability permanent in nature from a service-
connected disability.
(4) Any illness, injury, or dental condition of a
veteran who--
(A) is a participant in a vocational
rehabilitation program (as defined in section
3101(9) of this title); and
(B) is medically determined to have been in
need of care or treatment to make possible the
veteran's entrance into a course of training,
or prevent interruption of a course of
training, or hasten the return to a course of
training which was interrupted because of such
illness, injury, or dental condition.
(b) In any case where reimbursement would be in order under
subsection (a) of this section, the Secretary may, in lieu of
reimbursing such veteran, make payment of the reasonable value
of [care or services] emergency treatment directly--
(1) to the hospital or other health facility
furnishing the [care or services] emergency treatment;
or
(2) to the person or organization making such
expenditure on behalf of such veteran.
(c) In this section, the term `emergency treatment' has the
meaning given such term in section 1725(f)(1) of this title.
* * * * * * *