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110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-638

======================================================================



 
              VETERANS EMERGENCY CARE FAIRNESS ACT OF 2007

                                _______
                                

  May 15, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Filner, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3819]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 3819) 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 the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Discussion........................................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     3
Statement of General Performance Goals and Objectives............     4
New Budget Authority, Entitlement Authority, and Tax Expenditures     4
Earmarks and Tax and Tariff Benefits.............................     4
Committee Cost Estimate..........................................     4
Congressional Budget Office Estimate.............................     4
Federal Mandates Statement.......................................     6
Advisory Committee Statement.....................................     6
Constitutional Authority Statement...............................     7
Applicability to Legislative Branch..............................     7
Section-by-Section Analysis of the Legislation ..................     7
Changes in Existing Law Made by the Bill as Reported.............     7

                          Purpose and Summary

    H.R. 3819 was introduced by Representative Zack Space of 
Ohio. This legislation would require the Secretary of Veterans 
Affairs (VA) to reimburse certain veterans for the cost of 
emergency treatment received in a non-VA facility. It would 
also require the Secretary to reimburse certain veterans with a 
service-connected disability or a non-service-connected 
disability associated with, or aggravated by, a service-
connected disability for the value of emergency treatment for 
which such veterans have made payment from sources other than 
the VA.
    The bill would also define ``emergency treatment'' in both 
sections to that of a ``prudent layperson'' standard and define 
``emergency treatment'' as continuing until the veteran could 
have been transferred safely to a VA or other Federal facility, 
or a VA 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.

                       Background and Discussion

    During a Joint House and Senate Committee on Veterans' 
Affairs meeting in New Philadelphia, Ohio, on May 29, 2007, 
several issues were brought to the attention of the Committee 
regarding recurring problems with reimbursement or payment of 
emergency treatment by VA to non-VA facilities. Testimony 
highlighted delays in receiving transfer approvals in order to 
transfer veterans from a non-VA community hospital to an 
appropriate VA medical center, withdrawal of previously 
provided approvals by VA, and delays in receiving 
reimbursement. VA medical centers are often full, or are 
unwilling to accept the transfer of these patients, leaving 
them in the care of non-VA facilities. These facilities are 
often small community hospitals who often feel obligated to 
continue providing medical care with no promise of 
reimbursement from the VA.
    VA is currently authorized to provide reimbursement to non-
VA hospitals for emergency care provided for treatment of a 
service-connected disability, or a non-service connected 
disability aggravated by a service-connected condition, up to 
the point of stabilization of the patient. VA can also 
reimburse or pay for the reasonable value of expenses incurred 
by a covered veteran for non-VA emergency treatment for a non-
service connected condition. Once the patient is stable enough 
to be transferred, he or she must be moved to a VA hospital. 
After the point of stabilization, if a VA hospital does not 
have a bed available, or they are unwilling to accept the 
transfer, VA currently is not required to reimburse the non-VA 
facility for the cost of care.
    This legislation would mandate that the VA reimburse or pay 
for the reasonable value of treatment for any veteran who meets 
eligibility criteria and defines ``emergency treatment'' as 
continuing until the veteran can be transferred safely to a VA 
or other Federal facility, and the VA or other Federal facility 
agrees to accept such a transfer. This change would ensure that 
veterans' emergency care at a non-VA facility will be paid for 
until he or she can be safely transferred to an available VA or 
other Federal facility. This legislation would also standardize 
the emergency reimbursement programs by applying the ``prudent 
layperson'' definition of emergency treatment to all emergency 
situations, where the standard for determining whether 
treatment is covered is whether a prudent layperson would have 
thought it reasonable to seek immediate medical attention.

                                Hearings

    On January 17, 2008, the Subcommittee on Health held a 
legislative hearing on a number of bills introduced in the 
110th Congress, including H.R. 3819. The following witnesses 
testified: The Honorable Phil Hare of Illinois; The Honorable 
Stephanie Herseth Sandlin of South Dakota; The Honorable 
Zachary T. Space of Ohio; The Honorable Shelley Moore Capito of 
West Virginia; The Honorable Michael M. Honda of California; 
The Honorable Leonard L. Boswell of Iowa; The Honorable Steve 
Kagen of Wisconsin; Mr. Joseph L. Wilson, Deputy Director, 
Veterans Affairs and Rehabilitation Commission, The American 
Legion; Ms. Joy J. Ilem, Assistant National Legislative 
Director, Disabled American Veterans; Mr. Christopher Needham, 
Senior Legislative Associate, Veterans of Foreign Wars of the 
United States; Mr. Richard F. Weidman, Executive Director for 
Policy and Government Affairs, Vietnam Veterans of America; 
Gerald M. Cross, M.D., FAAFP, Principal Deputy Under Secretary 
for Health, Veterans Health Administration, U.S. Department of 
Veterans Affairs, accompanied by Mr. Walter A. Hall, Assistant 
General Counsel, U.S. Department of Veterans Affairs. Those 
submitting statements for the record included: American Academy 
of Physician Assistants; The Honorable Shelley Berkley of 
Nevada; Mental Health America; and, the Paralyzed Veterans of 
America.

                        Committee Consideration

    On April 23, 2008, the Subcommittee on Health met in open 
markup session and ordered favorably forwarded to the full 
Committee H.R. 3819, without amendment, by voice vote.
    On April 30, 2008, the full Committee met in open markup 
session, a quorum being present, and ordered H.R. 3819 
favorably reported to the House of Representatives, without 
amendment, by voice vote.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report the legislation and amendments thereto. 
There were no record votes taken on amendments or in connection 
with ordering H.R. 3819 reported to the House. A motion by Mr. 
Buyer of Indiana to order H.R. 3819, reported favorably to the 
House of Representatives was agreed to by voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                  Earmarks and Tax and Tariff Benefits

    H.R. 3819 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI of the Rules of the 
House of Representatives.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate on H.R. 
3819 prepared by the Director of the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974.

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 3819 provided by the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 12, 2008.
Hon. Bob Filner,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3819, 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,
                                         Robert A. Sunshine
                                   (For Peter R. Orszag, Director).
    Enclosure.

H.R. 3819--Veterans Emergency Care Fairness Act of 2007

    Summary: H.R. 3819 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 H.R. 3819 would cost $323 million over the 2009-
2013 period, assuming appropriation of the estimated amounts. 
Enacting the bill would not affect direct spending or revenues.
    H.R. 3819 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 H.R. 3819 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--
                                                                    --------------------------------------------
                                                                       2009     2010     2011     2012     2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................................       52       58       65       73       82
Estimated Outlays..................................................       49       57       64       72       81
----------------------------------------------------------------------------------------------------------------

    Basis of Estimate: For this estimate, CBO assumes that the 
legislation will be enacted before the end 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. H.R. 3819 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 $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 H.R. 3819

    H.R. 3819 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 an average of $30 million a year 
over the 2009-2013 period, assuming appropriation of the 
estimated amounts.
    Based on information from VA, CBO estimates that under H.R. 
3819, 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 an average of $35 million a year over 
the 2009-2013 period, assuming appropriation of the estimated 
amounts.
    Intergovernmental and private-sector impact: H.R. 3819 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Previous CBO Estimate: On January 16, 2008, CBO transmitted 
a cost estimate for S. 2142, the Veterans Emergency Care 
Fairness Act of 2007, as ordered reported by the Senate 
Committee on Veterans' Affairs on November 14, 2007. The bills 
are similar and their estimated costs are the same over the 
2009-2013 period. Because CBO assumed an earlier enactment date 
for S. 2142, we estimated that bill would cost $20 million in 
2008.
    Estimate prepared by: Federal costs: Sunita D'Monte; Impact 
on state, local, and tribal governments: Lisa Ramirez-Branum; 
Impact on the private sector: Daniel Frisk.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 3819 prepared by the Director of the 
Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
3819.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for H.R. 3819 is provided by Article 
I, section 8 of the Constitution of the United States

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section would provide the short title of H.R. 3819 as 
the ``Veterans Emergency Care Fairness Act of 2007.''

Section 2. Requires that the Department of Veterans Affairs provide 
        reimbursement to veterans receiving emergency treatment in non-
        Department of Veterans Affairs facilities until transfer to 
        department facilities

    This section would amend section 1725 of title 38, United 
States Code, to require the VA to reimburse veterans who 
receive emergency treatment in non-VA facilities until the time 
when the veteran can be safely transferred to a VA facility and 
the VA agrees to accept such transfer. This section also would 
amend section 1728 of title 38, United States Code, to require 
the VA to reimburse certain veterans with a service-connected 
disability or a non-service-connected disability associated 
with or aggravating a service-connected disability for the 
value of emergency treatment for which such veterans have made 
payment from sources other than the VA.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the 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) * * *

           *       *       *       *       *       *       *

                  [(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; or
                          (ii) such time as a Department 
                        facility or other Federal facility 
                        agrees to accept such transfer if--
                                  (I) at the time described in 
                                clause (i), no Department 
                                facility or other Federal 
                                facility agrees to accept such 
                                transfer; and
                                  (II) the non-Department 
                                facility in which such medical 
                                care or services is furnished 
                                makes and documents 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 shall prescribe, reimburse veterans entitled to 
hospital care or medical services under this chapter for the 
reasonable value 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 in 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

           *       *       *       *       *       *       *

  (c) In this section, the term ``emergency treatment'' has the 
meaning given such term in section 1725(f)(1) of this title.

           *       *       *       *       *       *       *