II 115th CONGRESS 1st Session S. 1611 IN THE SENATE OF THE UNITED STATES July 20, 2017 Mr. Hoeven (for himself and Mr. Rounds ) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To amend title 38, United States Code, to allow the Secretary of Veterans Affairs to enter into certain agreements with non-Department of Veterans Affairs health care providers if the Secretary is not feasibly able to provide health care in facilities of the Department or through contracts or sharing agreements, and for other purposes.

1. Short title This Act may be cited as the Veterans Access to Long Term Care and Health Services Act . 2. Purpose The purpose of this Act is— (1) to maintain the access of veterans to high-quality hospital care, medical services, and extended care if that care is not available directly from the Department of Veterans Affairs; (2) to continue to allow the use by the Department of agreements covered by the Federal Acquisition Regulation and agreements that are not covered by such regulation, similar to those agreements used under the original Medicare fee-for-service program (Medicare Parts A and B), if it is not practicable to contract for the care needed by veterans through an agreement covered by such regulation; (3) to address the fact that individual health care providers, especially smaller providers in rural areas, may not be willing to accept veterans as patients when doing so would require the significant time and administrative requirements in connection with entering into agreements with the Department that are covered by such regulation; (4) to address the deficiencies in current law regarding agreements entered into by the Department that have raised legal issues; and (5) to ensure that agreements that are not covered by such regulation include robust terms and conditions that address the quality of health care for veterans, oversight of the provision of such health care, and protections for taxpayers. 3. Authorization of agreements between the Department of Veterans Affairs and non-Department health care providers (a) In general Subchapter I of chapter 17 of title 38, United States Code, is amended by adding after section 1703 the following new section: 1703A. Veterans Care Agreements with certain health care providers (a) Agreements To Furnish Care (1) If the Secretary is not feasibly able to furnish hospital care, medical services, or extended care under this chapter at facilities of the Department or under contracts or sharing agreements entered into under authorities other than this section, the Secretary may furnish such care and services by entering into agreements under this section with eligible providers that are certified under subsection (c). An agreement entered into under this section may be referred to as a Veterans Care Agreement . (2) The Secretary is not feasibly able to furnish care or services as described in paragraph (1) if the Secretary determines that the medical condition of the veteran, the travel involved, the nature of the care or services required, or a combination of those factors make the use of facilities of the Department, contracts, or sharing agreements impracticable or inadvisable. (3) Eligibility of a veteran under this section for the care or services described in paragraph (1) shall be determined as if such care or services were furnished in a facility of the Department and provisions of this title applicable to veterans receiving such care or services in a facility of the Department shall apply to veterans receiving such care or services under this section. (b) Eligible providers For purposes of this section, an eligible provider is one of the following: (1) A provider of services that has enrolled and entered into a provider agreement under section 1866(a) of the Social Security Act ( 42 U.S.C. 1395cc(a) ). (2) A physician or supplier that has enrolled and entered into a participation agreement under section 1842(h) of such Act ( 42 U.S.C. 1395u(h) ). (3) A provider of items and services receiving payment under a State plan under title XIX of such Act ( 42 U.S.C. 1396 et seq.) or a waiver of such a plan. (4) A provider that is— (A) an Aging and Disability Resource Center, an area agency on aging, or a State agency (as defined in section 102 of the Older Americans Act of 1965 ( 42 U.S.C. 3002 )); or (B) a center for independent living (as defined in section 702 of the Rehabilitation Act of 1973 ( 29 U.S.C. 796a )). (5) Such other health care providers as the Secretary considers appropriate for purposes of this section. (c) Certification of eligible providers (1) The Secretary shall establish a process for the certification of eligible providers under this section that shall, at a minimum, set forth the following: (A) Procedures for the submittal of applications for certification and deadlines for actions taken by the Secretary with respect to such applications. (B) Standards and procedures for approval and denial of certification, duration of certification, revocation of certification, and recertification. (C) Procedures for assessing eligible providers based on the risk of fraud, waste, and abuse of such providers similar to the level of screening under section 1866(j)(2)(B) of the Social Security Act ( 42 U.S.C. 1395cc(j)(2)(B) ) and the standards set forth under section 9.104 of title 48, Code of Federal Regulations, or any successor regulation. (2) The Secretary shall deny or revoke certification to an eligible provider under this subsection if the Secretary determines that the eligible provider is currently— (A) excluded from participation in a Federal health care program (as defined in section 1128B(f) of the Social Security Act (42 U.S.C. 1320a–7b(f))) under section 1128 or 1128A of the Social Security Act ( 42 U.S.C. 1320a–7 and 1320a–7a); or (B) identified as an excluded source on the list maintained in the System for Award Management, or any successor system. (d) Terms of agreements Each agreement entered into with an eligible provider under this section shall include provisions requiring the eligible provider to do the following: (1) To accept payment for care and services furnished under this section at rates established by the Secretary for purposes of this section, which shall be, to the extent practicable, the rates paid by the United States for such care and services to providers of services and suppliers under the Medicare program under title XVIII of the Social Security Act ( 42 U.S.C. 1395 et seq.). (2) To accept payment under paragraph (1) as payment in full for care and services furnished under this section and to not seek any payment for such care and services from the recipient of such care and services. (3) To furnish under this section only the care and services authorized by the Department under this section unless the eligible provider receives prior written consent from the Department to furnish care or services outside the scope of such authorization. (4) To bill the Department for care and services furnished under this section in accordance with a methodology established by the Secretary for purposes of this section. (5) Not to seek to recover or collect from a health-plan contract or third party, as those terms are defined in section 1729 of this title, for any care or services for which payment is made by the Department under this section. (6) To provide medical records for veterans furnished care or services under this section to the Department in a timeframe and format specified by the Secretary for purposes of this section. (7) To meet such other terms and conditions, including quality of care assurance standards, as the Secretary may specify for purposes of this section. (e) Termination of agreements (1) An eligible provider may terminate an agreement with the Secretary under this section at such time and upon such notice to the Secretary as the Secretary may specify for purposes of this section. (2) The Secretary may terminate an agreement with an eligible provider under this section at such time and upon such notice to the eligible provider as the Secretary may specify for purposes of this section, if the Secretary— (A) determines that the eligible provider failed to comply substantially with the provisions of the agreement or with the provisions of this section and the regulations prescribed thereunder; (B) determines that the eligible provider is— (i) excluded from participation in a Federal health care program (as defined in section 1128B(f) of the Social Security Act (42 U.S.C. 1320a–7b(f))) under section 1128 or 1128A of the Social Security Act ( 42 U.S.C. 1320a–7 and 1320a–7a); or (ii) identified as an excluded source on the list maintained in the System for Award Management, or any successor system; (C) ascertains that the eligible provider has been convicted of a felony or other serious offense under Federal or State law and determines that the continued participation of the eligible provider would be detrimental to the best interests of veterans or the Department; or (D) determines that it is reasonable to terminate the agreement based on the health care needs of a veteran or veterans. (f) Periodic review of certain agreements (1) Not less frequently than once every two years, the Secretary shall review each Veterans Care Agreement of material size entered into during the two-year period preceding the review to determine whether it is feasible and advisable to furnish the hospital care, medical services, or extended care furnished under such agreement at facilities of the Department or through contracts or sharing agreements entered into under authorities other than this section. (2) (A) Subject to subparagraph (B), a Veterans Care Agreement is of material size as determined by the Secretary for purposes of this section. (B) A Veterans Care Agreement entered into after September 30, 2018, for the purchase of extended care services is of material size if the purchase of such services under the agreement exceeds $1,000,000 annually. The Secretary may adjust such amount to account for changes in the cost of health care based upon recognized health care market surveys and other available data and shall publish any such adjustments in the Federal Register. (g) Treatment of certain laws (1) An agreement under this section may be entered into without regard to any law that would require the Secretary to use competitive procedures in selecting the party with which to enter into the agreement. (2) (A) Except as provided in subparagraph (B) and unless otherwise provided in this section or regulations prescribed pursuant to this section, an eligible provider that enters into an agreement under this section is not subject to, in the carrying out of the agreement, any law that an eligible provider described in subsection (b)(1), (b)(2), or (b)(3) is not subject to under the original Medicare fee-for-service program under parts A and B of title XVIII of the Social Security Act ( 42 U.S.C. 1395 et seq.) or the Medicaid program under title XIX of such Act ( 42 U.S.C. 1396 et seq.). (B) The exclusion under subparagraph (A) does not apply to laws regarding integrity, ethics, fraud, or that subject a person to civil or criminal penalties. (3) Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.) shall apply with respect to an eligible provider that enters into an agreement under this section to the same extent as such title applies with respect to the eligible provider in providing care or services through an agreement or arrangement other than under this section. (h) Monitoring of quality of care The Secretary shall establish a system or systems, consistent with survey and certification procedures used by the Centers for Medicare & Medicaid Services and State survey agencies to the extent practicable— (1) to monitor the quality of care and services furnished to veterans under this section; and (2) to assess the quality of care and services furnished by an eligible provider for purposes of determining whether to renew an agreement under this section with the eligible provider. (i) Dispute resolution (1) The Secretary shall establish administrative procedures for eligible providers with which the Secretary has entered an agreement under this section to present any dispute arising under or related to the agreement. (2) Before using any dispute resolution mechanism under chapter 71 of title 41 with respect to a dispute arising under an agreement under this section, an eligible provider must first exhaust the administrative procedures established by the Secretary under paragraph (1). . (b) Regulations The Secretary of Veterans Affairs shall prescribe an interim final rule to carry out section 1703A of such title, as added by subsection (a), not later than one year after the date of the enactment of this Act. (c) Clerical amendment The table of sections at the beginning of chapter 17 of such title is amended by inserting after the item related to section 1703 the following new item: 1703A. Veterans Care Agreements with certain health care providers. . 4. Modification of authority to enter into agreements to provide nursing home care (a) Use of agreements (1) In general Paragraph (1) of section 1745(a) of title 38, United States Code, is amended, in the matter preceding subparagraph (A), by striking a contract (or agreement under section 1720(c)(1) of this title) and inserting an agreement . (2) Payment Paragraph (2) of such section is amended by striking contract (or agreement) each place it appears and inserting agreement . (b) Exclusion of certain Federal contracting provisions Such section is amended by adding at the end the following new paragraph: (4) (A) An agreement under this section may be entered into without regard to any law that would require the Secretary to use competitive procedures in selecting the party with which to enter into the agreement. (B) (i) Except as provided in clause (ii) and unless otherwise provided in this section or regulations prescribed pursuant to this section, a State home that enters into an agreement under this section is not subject to, in the carrying out of the agreement, any law that a provider described in subparagraph (D) is not subject to under the original Medicare fee-for-service program under parts A and B of title XVIII of the Social Security Act ( 42 U.S.C. 1395 et seq.) or the Medicaid program under title XIX of such Act ( 42 U.S.C. 1396 et seq.). (ii) The exclusion under clause (i) does not apply to laws regarding integrity, ethics, fraud, or that subject a person to civil or criminal penalties. (C) Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.) shall apply with respect to any State home that enters into an agreement under this section. (D) A provider described in this subparagraph is one of the following: (i) A provider of services that has enrolled and entered into a provider agreement under section 1866(a) of the Social Security Act ( 42 U.S.C. 1395cc(a) ). (ii) A physician or supplier that has enrolled and entered into a participation agreement under section 1842(h) of such Act ( 42 U.S.C. 1395u(h) ). (iii) A provider of items and services receiving payment under a State plan under title XIX of such Act ( 42 U.S.C. 1396 et seq.) or a waiver of such a plan. . (c) Effective date The amendments made by this section shall apply to agreements entered into under section 1745 of such title on and after the date that is 30 days after the date of the enactment of this Act.