Purpose Statute Violation:

Veterans Affairs Improperly Funded Certain Cost Comparison Studies with VHA Appropriations

GAO-06-124R: Published: Nov 30, 2005. Publicly Released: Nov 30, 2005.

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The Department of Veterans Affairs (VA) provides health care to about 4.7 million veterans primarily through its medical facilities--which include hospitals, nursing homes, outpatient clinics, and other health care facilities--and by contracting for care with other healthcare providers. To lower costs, increase access, and improve the quality of care provided to eligible veterans, VA evaluates the efficiency of its medical facilities, which includes performing studies to determine whether increased savings and efficiencies can be obtained from outsourcing certain segments of its operations. We have previously reported that VA would benefit from examining certain aspects of its operations, including its medical and laundry facilities, to determine if operational efficiencies could be achieved through consolidations, competitive sourcing, or both. While VA has the authority to conduct cost comparison studies and, when beneficial, to enter into contracts with commercial providers, VA may only finance cost comparison studies with funds that are legally available for this purpose. Under a provision in Title 38 of the U.S. Code, VA is prohibited by law from using any one of its Veterans Health Administration (VHA) appropriations for medical care, medical and prosthetic research, and medical administration and miscellaneous operating expenses--which fund VHA's operations--to conduct cost comparison studies unless the Congress specifically makes these appropriations available to conduct such studies. The Title 38 cost comparison funding prohibition also provides that no employee compensated from these VHA appropriations may carry out any activity in connection with such studies unless the Congress makes these appropriations specifically available for that purpose. In light of this, Congress asked us in April 2004 whether the limitations imposed by the Title 38 cost comparison funding prohibition applied solely to those studies conducted pursuant to the Office of Management and Budget (OMB) Circular No. A-76, Performance of Commercial Activities, which provides policies and procedures for determining whether commercial activities should be performed in-house using government resources or under contract with private contractor resources. If not, the request further asked whether the prohibition applied to such studies conducted as part of VA's Capital Asset Realignment for Enhanced Services (CARES) process. In our October 2004 legal opinion, we concluded that the Title 38 cost comparison funding prohibition was not limited to standard A-76 cost comparison studies in particular, or A-76 studies in general, and that the prohibition applies to CARES cost comparison studies. We further concluded that if VA had in fact obligated the VHA appropriations for the unavailable purpose of conducting cost comparison studies, then it would have violated the purpose statute. However, we noted in the opinion that we had not simultaneously undertaken an audit to determine if VHA had used these appropriations for this purpose. We met with VA headquarters officials and obtained information and documentation regarding cost comparison studies performed as part of CARES and other cost comparison studies performed during fiscal years 2001 to 2004. The information and documentation VA provided in response to our audit inquiry, however, were limited because VA does not maintain comprehensive, centralized data on the number and type of activities related to cost comparison studies conducted in the past or currently underway. Because of this, we limited the scope of our evaluation to determine whether VA improperly used VHA medical care appropriations in the three areas in which VA reported that cost comparison activities were performed: (1) VA's CARES process, (2) VA's evaluation of its medical center laundry facilities, and (3) the 1,626 cost comparison studies referenced in VA's fiscal year 2002 Performance and Accountability Report (PAR).

VA employees compensated from the VHA medical care appropriation accounts performed activities in support of cost comparison studies in connection with the CARES process, VA's evaluation of its medical center laundry facilities, and for some of the 1,626 studies referenced in VA's fiscal year 2002 PAR. Because the Congress did not specifically make VHA's medical care appropriations available for cost comparison studies, VA violated the Title 38 cost comparison funding prohibition and, consequently, the purpose statute. Although funds were specifically appropriated for performing such cost comparison studies for fiscal years 1983 through 2000, no similar specific appropriations were made available in subsequent fiscal years. For fiscal years 2001 to 2004, VA requested from the Congress but did not receive specific appropriations--ranging from $16 million to $50 million--to conduct cost comparisons studies. To successfully continue its competitive sourcing activities while complying with the Title 38 cost comparison funding prohibition, VA could have used other available VA appropriations to fund these activities, such as those for major projects construction, minor projects construction, or departmental administration. According to VA, the cost comparison activities we reviewed were not subject to the Title 38 cost comparison funding prohibition because VA interprets the prohibition as applying only to "formal" (i.e., standard) A-76 studies. This is the same position VA asserted to GAO in 2004 in response to our inquiry related to our October 2004 legal opinion. We continue to disagree with VA's interpretation. In our October 2004 legal opinion, we concluded that the Title 38 cost comparison funding prohibition applies to any VA studies comparing the costs of commercial services and products provided by private contractors with those provided by VA personnel whether or not they are "formal" studies under OMB Circular No. A-76. According to VA's fiscal year 2003 PAR, it halted the bulk of its competitive sourcing studies in August 2003 because the VA General Counsel had concluded that the Title 38 cost comparison funding prohibition prevents VA from conducting cost comparisons studies using the VHA medical appropriations unless the Congress provides specific funding for that purpose. According to VA, it is seeking legislative relief so that it can restart its planned competitive sourcing program. VA can correct its purpose statute violations through account adjustment by deobligating the amounts that were improperly charged to the VHA medical appropriations and charging these amounts to otherwise available appropriation accounts. This requires that VA know the amount of VHA medical appropriations used in connection with cost comparison studies. However, VA did not track the time and expense associated with performing cost comparison studies in-house and was thus unable to provide us with a reliable estimate of this amount. Therefore, we were unable to determine whether VA would have sufficient budget authority available in other appropriations to correct the amount of each purpose statute violation. As such, we were also unable to determine if VA could avoid violations of the Antideficiency Act by making account adjustments. Nonetheless, based on documentation provided by VA, the amount of time and effort spent in support of cost comparison studies likely was substantial. For example, according to VA's Draft National CARES Plan, issued on August 4, 2003, hundreds of staff across VA devoted a great deal of time and energy to the CARES implementation process, which lasted 14 months.

Recommendations for Executive Action

  1. Status: Closed - Not Implemented

    Comments: In its official comments to the draft report, VA disagreed with GAO's conclusion that the Title 38 cost comparison funding prohibition applied to all cost comparison studies and VA did not concur with GAO's recommendation to to establish a process to fund cost comparison studies using only appropriations available to fund such activities. VA interpreted the Title 38 prohibition as applying only to "formal" (i.e., standard) A-76 studies and said that the cost comparison activities GAO reviewed were not subject to that funding prohibition.

    Recommendation: To avoid future noncompliance with the Title 38 cost comparison funding prohibition, the Secretary of Veterans Affairs should establish a process to fund such activities using only appropriations available to fund such activities.

    Agency Affected: Department of Veterans Affairs

  2. Status: Closed - Not Implemented

    Comments: In its official comments to the draft report, VA disagreed with GAO's conclusion that the Title 38 cost comparison funding prohibition applied to all cost comparison studies and VA did not concur with GAO's recommendation to establish a process to estimate the amount of resources required to perform cost comparison studies and activities. VA interpreted the Title 38 funding prohibition as applying only to "formal" (i.e., standard) A-76 studies and said that the cost comparison activities GAO reviewed were not subject to that funding prohibition.

    Recommendation: To avoid future noncompliance with the Title 38 cost comparison funding prohibition, the Secretary of Veterans Affairs should establish a process to estimate the amount of resources required to perform such cost comparison studies and activities.

    Agency Affected: Department of Veterans Affairs

  3. Status: Open

    Comments: In its official comments to the draft report, VA disagreed with GAO's conclusion that the Title 38 cost comparison funding prohibition applied to all cost comparison studies, and VA did not concur with GAO's recommendation to establish a process to identify all planned cost comparison studies and activities--whether stand alone or as an integral part of a larger effort. VA interpreted the Title 38 prohibition as applying only to "formal" (i.e., standard) A-76 studies and said that the cost comparison activities GAO reviewed were not subject to that funding prohibition.

    Recommendation: To avoid future noncompliance with the Title 38 cost comparison funding prohibition, the Secretary of Veterans Affairs should establish a process to identify all planned cost comparison studies and activities--whether stand-alone or as an integral part of a larger effort.

    Agency Affected: Department of Veterans Affairs

  4. Status: Closed - Not Implemented

    Comments: In its official comments to the draft report, VA disagreed with GAO's conclusion that the Title 38 cost comparison funding prohibition applied to all cost comparison studies and VA did not concur with GAO's recommendation to implement a mechanism to track all costs associated with conducting all cost comparison studies -- including in-house and contract costs. VA interpreted the Title 38 prohibition as applying only to "formal" (i.e., standard) A-76 studies and said that the cost comparison activities GAO reviewed were not subject to that funding prohibition.

    Recommendation: To avoid future noncompliance with the Title 38 cost comparison funding prohibition, the Secretary of Veterans Affairs should establish a process to implement a mechanism to track all costs associated with conducting such studies--including in-house and contract costs.

    Agency Affected: Department of Veterans Affairs

 

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