```

[House Report 114-811]
[From the U.S. Government Publishing Office]

114th Congress    }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                    {       114-811

======================================================================
 
 DEPARTMENT OF VETERANS AFFAIRS EMERGENCY MEDICAL STAFFING RECRUITMENT 
                           AND RETENTION ACT

                                _______
                                

 November 14, 2016.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. Miller of Florida, from the Committee on Veterans' Affairs, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 4150]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 4150) to amend title 38, United States Code, to 
allow the Secretary of Veterans Affairs to modify the hours of 
employment of physicians and physician assistants employed on a 
full-time basis by the Department of Veterans Affairs, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Subcommittee Consideration.......................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     5
Statement of General Performance Goals and Objectives............     5
New Budget Authority, Entitlement Authority, and Tax Expenditures     5
Earmarks and Tax and Tariff Benefits.............................     5
Committee Cost Estimate..........................................     5
Congressional Budget Office Estimate.............................     5
Federal Mandates Statement.......................................     6
Advisory Committee Statement.....................................     6
Constitutional Authority Statement...............................     6
Applicability to Legislative Branch..............................     6
Statement on Duplication of Federal Programs.....................     7
Disclosure of Directed Rulemaking................................     7
Section-by-Section Analysis of the Legislation...................     7
Changes in Existing Law Made by the Bill as Reported.............     7

                               Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Department of Veterans Affairs 
Emergency Medical Staffing Recruitment and Retention Act''.

SEC. 2. MODIFICATION OF HOURS OF EMPLOYMENT FOR PHYSICIANS AND 
                    PHYSICIAN ASSISTANTS EMPLOYED BY THE DEPARTMENT OF 
                    VETERANS AFFAIRS.

  Section 7423(a) of title 38, United States Code, is amended--
          (1) by striking ``(a) The hours'' and inserting ``(a)(1) 
        Except as provided in paragraph (2), the hours''; and
          (2) by adding at the end the following new paragraph:
  ``(2) The Secretary may modify the hours of employment for a 
physician or physician assistant appointed in the Administration under 
any provision of this chapter on a full-time basis to be more than or 
less than 80 hours in a biweekly pay period if the total hours of 
employment for such employee in a calendar year does not exceed 2,080 
hours. No physician or physician assistant may accrue overtime by 
reason of modified hours of employment authorized under this 
paragraph.''.

                          Purpose and Summary

    H.R. 4150, the ``Department of Veterans Affairs Emergency 
Medical Staffing Recruitment and Retention Act,'' was 
introduced by Representative Raul Ruiz of California on 
December 1, 2016. H.R. 4150, as amended, would (1) authorize 
the Department of Veterans Affairs (VA) to modify the hours of 
employment for a full-time VA physician or physician assistant 
(PA) to be more than or less than 80 hours in a biweekly pay 
period if the total of such employee's hours of employment in a 
calendar year does not exceed 2,080 hours and (2) stipulate 
that no physician or PA may accrue overtime as a result of 
modified hours of employment pursuant to this authority.

                  Background and Need for Legislation

    According to the 2016 report from the Association of 
American Medical Colleges, the United States is facing a coming 
physician shortfall as ``[p]hysician demand continues to grow 
faster than supply leading to a projected total physician 
shortfall of between 61,700 and 94,700 physicians by 2025.''\1\ 
The Veterans Health Administration (VHA) is not immune to the 
expected provider shortage. On March 16, 2016, VA officials 
testified before the Subcommittee on Health that VHA had 43,000 
current vacancies, nearly 4,000 of which are physician 
vacancies.\2\ VHA's ability to effectively manage these 
vacancies is hampered by continued struggles to recruit and 
retain quality health care providers and make efficient use of 
the existing VHA workforce. Accordingly, in the final report of 
the Commission on Care, which was issued in June 2016, the 
Commissioners noted that VHA employs ``policies that fail to 
optimize the talents and efficiency of all health professionals 
[and] detract from the effectiveness of VHA health care,'' and 
that ``robust structured programs to recruit, retain, develop, 
and advance high potential staff are essential.''\3\
---------------------------------------------------------------------------
    \1\The Complexities of Physician Supply and Demand: Projections 
from 2014 to 2025. https://www.aamc.org/download/458082/data/
2016_complexities_of_supply_and_demand_projections.pdf.
    \2\Subcommittee on Health and Subcommittee on Economic Opportunity 
Joint Legislative Hearing on draft legislation to improve the authority 
of the Secretary of Veterans Affairs to hire and retain physicians and 
other employees of the Department of Veterans Affairs, March 16, 2016. 
https://veterans.house.gov/hearings/legislative-hearing-draft-
legislation-improve-authority-secretary-veterans-affairs-hire-0.
    \3\Commission on Care Final Report. https://
commissiononcare.sites.usa.gov/files/2016/07/Commission-on-Care_Final-
Report_063016_FOR-WEB.pdf.
---------------------------------------------------------------------------
    Currently, VHA's ability to maximize its providers' time is 
hampered by a rigid, 40-hour work week pay schedule that is at 
odds with private sector industry standards. Typically, 
emergency department providers work flexible schedules to 
accommodate the variant, irregular hours that their work 
demands. As the University of California, San Francisco School 
of Medicine explains, ``EM [emergency medicine] physicians 
should expect to work a mix of day, evening, night, weekend, 
and holiday shifts,'' where ``every shift is different,'' and 
``work shifts range from 6-12 hours plus time to sign-out and 
finish clinical tasks.''\4\ However, VHA's standing 80-hour pay 
period does not provide emergency room providers sufficient 
flexibility to work fluid hours similar to their private sector 
counterparts, putting VA emergency room staffing practices at 
odds with industry standards. In VA's fiscal year 2017 budget 
submission, the Department issued a legislative proposal--which 
this bill is based on--that would address this issue. According 
to the Department, this would, ``allow VA to arrange flexible 
physician and physician assistant work schedules to allow for 
the staffing and full implementation of a hospitalist physician 
system and to accommodate the unusual work schedule 
requirements for Emergency Medicine (EM) Physicians.''\5\
---------------------------------------------------------------------------
    \4\Career Information: Emergency Medicine. http://meded.ucsf.edu/
ume/career-information-emergency-medicine.
    \5\Full Committee Legislative Hearing on H.R. 3216, H.R. 4150, H.R. 
4764, H.R. 5047, H.R. 5083, H.R. 5162, H.R. 5166, H.R. 5392, H.R. 5407, 
H.R. 5416, H.R.5420, and H.R. 5428, June 23, 2016. https://
veterans.house.gov/hearings/legislative-hearing-hr-3216-hr-4150-hr-
4764-hr-5047-hr-5083-hr-5162-hr-5166-hr-5392-hr-5407.
---------------------------------------------------------------------------
    The Committee is dedicated to ensuring timely access to 
quality care for veteran patients. Providing appropriate tools 
to enhance the recruitment and retention of a high quality VA 
workforce is essential to achieving that priority. As such, 
Section 2 of the bill would allow VA to determine a physician 
or physician assistant's full-time status based on the hours 
they are expected to work in a year--2,080--rather than the 
hours they work during a bi-weekly pay period--80. Section 2 of 
the bill would also stipulate that no physician or PA may 
accrue overtime by reason of the modified work hours authorized 
in this legislation unless the hours worked exceed the normal 
scheduled hours. The Committee believes this change will enable 
VHA to maximize the Department's current workforce and, 
therefore, increase access to care for veteran patients.

                                Hearings

    On June 23, 2016, the Full Committee held a legislative 
hearing on various bills introduced in the 114th Congress, 
including H.R. 4150. The following witnesses testified:

          The Honorable Doug Lamborn of Colorado, U.S. House of 
        Representatives; the Honorable Dina Titus of Nevada, 
        U.S. House of Representatives; the Honorable Raul Ruiz 
        of California, U.S. House of Representatives; the 
        Honorable Beto O'Rourke of Texas, U.S. House of 
        Representatives; the Honorable Ron DeSantis of Florida, 
        U.S. House of Representatives; the Honorable Ted Yoho 
        of Florida, U.S. House of Representatives; the 
        Honorable Jody Hice of Georgia, U.S. House of 
        Representatives; the Honorable Dan Newhouse of 
        Washington, U.S. House of Representatives; the 
        Honorable David Young of Iowa, U.S. House of 
        Representatives; the Honorable Sloan Gibson, Deputy 
        Secretary, U.S. Department of Veterans Affairs, 
        accompanied by Laura Eskenazi, the Executive in Charge 
        and Vice Chairman of the Board of Veterans Appeals, 
        David McLenachen, the Deputy Under Secretary for 
        Disability Assistance for the Veterans Benefits 
        Administration, and Dr. Maureen McCarthy, the Assistant 
        Deputy Under Secretary for Health Patient Care Services 
        for the Veterans Health Administration; Raymond Kelley, 
        Director, National Legislative Service, Veterans of 
        Foreign Wars of the United States; Paul Varela, the 
        Assistant National Legislative Director, Disabled 
        American Veterans; Carl Blake, Associate Executive 
        Director of Government Relations, Paralyzed Veterans of 
        America; Louis J. Celli, Jr., Director, National 
        Veterans Affairs and Rehabilitation Division, The 
        American Legion; and, Rick Weidman, Executive Director 
        for Policy and Government Affairs, Vietnam Veterans of 
        America.

    Statements for the record were submitted by:

          American Battle Monuments Commission; AMVETS; Court 
        of Appeals for Veterans Claims; Iraq and Afghanistan 
        Veterans of America; Military Officers Association of 
        America; Military Veterans Advocacy, Inc.; National 
        Organization of Veterans Advocates; National Veterans 
        Legal Services Program; P.A.W.S. Foundation; Stetson 
        University College of Law's Veterans Law Institute; 
        and, U.S. Department of Labor.

    There were no Subcommittee hearings held on H.R. 4150, as 
amended.

                       Subcommittee Consideration

    There was no Subcommittee markup of H.R. 4150, as amended.

                        Committee Consideration

    On September 21, 2016, the Full Committee met in open 
markup session, a quorum being present, and ordered H.R. 4150, 
as amended, favorably reported to the House of Representatives 
by voice vote. During consideration of the bill, the following 
amendment in the nature of a substitute was considered and 
agreed to by voice vote:
          An Amendment in the Nature of a Substitute to H.R. 
        4150 offered by Representative Raul Ruiz of California.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, there were no recorded votes 
taken on amendments or in connection with ordering H.R. 4150, 
as amended, reported to the House. A motion by Representative 
Mark Takano of California to report H.R. 4150, as amended, 
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 to modify hours of employment for 
certain VHA employees in order to increase access to care for 
veteran patients.

   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. 4150, as amended, does not contain any Congressional 
earmarks, limited tax benefits, or limited tariff benefits as 
defined in clause 9 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. 
4150, as amended, 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. 4150, as amended, 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, October 12, 2016.
Hon. Jeff Miller,
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. 4150, the 
Department of Veterans Affairs Emergency Medical Staffing 
Recruitment and Retention Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Ann E. 
Futrell.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 4150--Department of Veterans Affairs Emergency Medical Staffing 
        Recruitment and Retention Act

    H.R. 4150 would allow the Department of Veterans Affairs 
(VA) to offer alternative work schedules (above or below 80 
hours on a biweekly basis) to physicians or physician 
assistants (PAs) who work for VA on a full-time basis, provided 
that the total work hours in a calendar year do not exceed 
2,080. Physicians and PAs would not be eligible for overtime 
pay for the hours worked in accordance with an alternative work 
schedule. VA reports that implementing this bill would not 
affect the amount of compensation paid to those employees.
    CBO estimates that implementing this bill would cost less 
than $500,000 over the 2017-2021 period to prepare the 
necessary regulations; that spending would be subject to the 
availability of appropriated funds.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 4150 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    H.R. 4150 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act would 
not affect the budgets of state, local, or tribal governments.
    The CBO staff contact for this estimate is Ann E. Futrell. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 4150, as amended, 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. 
4150, as amended.

                 Statement of Constitutional Authority

    Pursuant to Article I, section 8 of the United States 
Constitution, H.R. 4150, as amended, is authorized by Congress' 
power to ``provide for the common Defense and general Welfare 
of the United States.''

                  Applicability to Legislative Branch

    The Committee finds that H.R. 4150, as amended, 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.

              Statement on Duplication of Federal Programs

    Pursuant to section 3(g) of H. Res. 5, 114th Cong. (2015), 
the Committee finds that no provision of H.R. 4150, as amended, 
establishes or reauthorizes a program of the Federal Government 
known to be duplicative of another Federal program, a program 
that was included in any report from the Government 
Accountability Office to Congress pursuant to section 21 of 
Public Law 111-139, or a program related to a program 
identified in the most recent Catalog of Federal Domestic 
Assistance.

                   Disclosure of Directed Rulemaking

    Pursuant to section 3(i) of H. Res. 5, 114th Cong. (2015), 
the Committee estimates that H.R. 4150, as amended, contains no 
directed rule making that would require the Secretary to 
prescribe regulations.

             Section-by-Section Analysis of the Legislation

Section 1. Short title

    Section 1 of the bill would provide the short title for 
H.R. 4150, as amended, as the ``Department of Veterans Affairs 
Emergency Medical Staffing Recruitment and Retention Act.''

Section 2. Modification of hours of employment for physicians and 
        physician assistants employed by the Department of Veterans 
        Affairs

    Section 2 of the bill would amend section 7423(a) of title 
38 U.S.C. by striking ``(a) the hours'' and inserting ``(a)(1) 
Except as provided in paragraph (2), the hours'' and adding at 
the end a paragraph authorizing VA to modify the hours of 
employment for a full-time physician or physician assistant to 
be more or less than eighty hours in a biweekly pay period, so 
long as that employee's total hours do not exceed 2,080 in a 
single calendar year and stipulate that no physician or 
physician assistant may accrue overtime due to modified hours 
of employment authorized under this paragraph.

         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):

         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 italics, and existing law in which no 
change is proposed is shown in roman):

TITLE 38, UNITED STATES CODE

           *       *       *       *       *       *       *

PART V--BOARDS, ADMINISTRATIONS, AND SERVICES

           *       *       *       *       *       *       *

CHAPTER 74--VETERANS HEALTH ADMINISTRATION - PERSONNEL

           *       *       *       *       *       *       *

SUBCHAPTER II--COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

           *       *       *       *       *       *       *

Sec. 7423. Personnel administration: full-time employees

  [(a) The hours] (a)(1) Except as provided in paragraph (2), 
the hours of employment in carrying out responsibilities under 
this title of any employee who is appointed in the 
Administration under any provision of this chapter on a full-
time basis in a position listed in section 7421(b) of this 
title (other than an intern or resident appointed pursuant to 
section 7406 of this title) and who accepts responsibilities 
for carrying out professional services for remuneration other 
than those assigned under this title shall consist of not less 
than 80 hours in a biweekly pay period (as that term is used in 
section 5504 of title 5).
  (2) The Secretary may modify the hours of employment for a 
physician or physician assistant appointed in the 
Administration under any provision of this chapter on a full-
time basis to be more than or less than 80 hours in a biweekly 
pay period if the total hours of employment for such employee 
in a calendar year does not exceed 2,080 hours. No physician or 
physician assistant may accrue overtime by reason of modified 
hours of employment authorized under this paragraph.
  (b) A person covered by subsection (a) may not do any of the 
following:
          (1) Teach or provide consultative services at any 
        affiliated institution if such teaching or consultation 
        will, because of its nature or duration, conflict with 
        such person's responsibilities under this title.
          (2) Accept payment under any insurance or assistance 
        program established under title XVIII or XIX of the 
        Social Security Act or under chapter 55 of title 10 for 
        professional services rendered by such person while 
        carrying out such person's responsibilities under this 
        title.
          (3) Accept from any source, with respect to any 
        travel performed by such person in the course of 
        carrying out such person's responsibilities under this 
        title, any payment or per diem for such travel, other 
        than as provided for in section 4111 of title 5.
          (4) Request or permit any individual or organization 
        to pay, on such person's behalf for insurance insuring 
        such person against malpractice claims arising in the 
        course of carrying out such person's responsibilities 
        under this title or for such person's dues or similar 
        fees for membership in medical or dental societies or 
        related professional associations, except where such 
        payments constitute a part of such person's 
        remuneration for the performance of professional 
        responsibilities permitted under this section, other 
        than those carried out under this title.
          (5) Perform, in the course of carrying out such 
        person's responsibilities under this title, 
        professional services for the purpose of generating 
        money for any fund or account which is maintained by an 
        affiliated institution for the benefit of such 
        institution, or for such person's personal benefit, or 
        both.
  (c) In the case of any fund or account described in 
subsection (b)(5) that was established before September 1, 
1973--
          (1) the affiliated institution shall submit 
        semiannually an accounting to the Secretary and to the 
        Comptroller General of the United States with respect 
        to such fund or account and shall maintain such fund or 
        account subject to full public disclosure and audit by 
        the Secretary and the Comptroller General for a period 
        of three years or for such longer period as the 
        Secretary shall prescribe, and
          (2) no person in a position specified in paragraph 
        (1)(B) may receive any cash from amounts deposited in 
        such fund or account derived from services performed 
        before that date.
  (d) As used in this section:
          (1) The term ``affiliated institution'' means a 
        medical school or other institution of higher learning 
        with which the Secretary has a contract or agreement as 
        referred to in section 7313 of this title for the 
        training or education of health personnel.
          (2) The term ``remuneration'' means the receipt of 
        any amount of monetary benefit from any non-Department 
        source in payment for carrying out any professional 
        responsibilities.
  (e)(1) The Secretary shall establish a leave transfer program 
for the benefit of health-care professionals in positions 
listed in section 7401(1) of this title. The Secretary may also 
establish a leave bank program for the benefit of such health-
care professionals.
  (2) To the maximum extent feasible--
          (A) the leave transfer program shall provide the same 
        or similar requirements and conditions as are provided 
        for the program established by the Director of the 
        Office of Personnel Management under subchapter III of 
        chapter 63 of title 5; and
          (B) any leave bank program established pursuant to 
        paragraph (1) shall be consistent with the requirements 
        and conditions provided for agency leave bank programs 
        in subchapter IV of such chapter.
  (3) Participation by a health-care professional in the leave 
transfer program established pursuant to paragraph (1), and in 
any leave bank program established pursuant to such paragraph, 
shall be voluntary. The Secretary may not require any health-
care professional to participate in such a program.
  (4)(A) The Secretary and the Director of the Office of 
Personnel Management may enter into an agreement that permits 
health-care professionals referred to in paragraph (1) to 
participate in the leave transfer program established by the 
Director of the Office of Personnel Management under subchapter 
III of chapter 63 of title 5 or in any leave bank program 
established for other employees of the Department pursuant to 
subchapter IV of chapter 63 of title 5, or both.
  (B) Participation of such health-care professionals in a 
leave transfer program or a leave bank program pursuant to an 
agreement entered into under subparagraph (A) shall be subject 
to such requirements and conditions as may be prescribed in 
such agreement.
  (5) The Secretary is not required to establish a leave 
transfer program for any personnel permitted to participate in 
a leave transfer program pursuant to an agreement referred to 
in paragraph (4).
  (f) The Secretary may purchase promotional items of nominal 
value for use in the recruitment of individuals for employment 
under this chapter. The Secretary shall prescribe guidelines 
for the administration of the preceding sentence.

           *       *       *       *       *       *       *

                                  [all]
```