B-200109 L/M, SEP 26, 1980

B-200109 L/M, SEP 26, 1980

PRECIS-UNAVAILABLE

RAY ROBERTS, HOUSE OF REPRESENTATIVES:

YOU ASKED FOR OUR OPINION ON WHETHER THE VETERANS ADMINISTRATION (VA) MAY LEGALLY CONDUCT A PILOT RESEARCH PROJECT THAT WOULD OFFER HEALTH CARE TO VETERANS THROUGH AN ENROLLMENT SYSTEM. YOU ENCLOSED A COPY OF THE PROJECT PROTOCOL AND A COPY OF A LEGAL MEMORANDUM SIGNED BY THE VA'S GENERAL COUNSEL ALONG WITH YOUR REQUEST. YOUR COMMITTEE IS CONCERNED BECAUSE IT BELIEVES THAT THE VA INTENDS UNDER THE PILOT PROGRAM TO PROVIDE CERTAIN HEALTH CARE SERVICES TO SOME VETERANS WHICH MAY CONFLICT WITH ELIGIBILITY CRITERIA IN CURRENT LAW.

THE VA'S DEPARTMENT OF MEDICINE AND SURGERY INTENDS TO TEST WHETHER A SYSTEM OF ENROLLMENT WOULD BE AN EFFECTIVE AID TO IT IN PLANNING FOR THE PROVISION OF HEALTH CARE TO VETERANS AND WHETHER ENROLLMENT COULD HELP THE VA MANAGE ITS HEALTH CARE RESOURCES MORE EFFICIENTLY. THE PROJECT PROTOCOL DEFINES ENROLLMENT AS:

"*** A SYSTEM WHEREBY VA FACILITIES OFFER TO INDIVIDUAL VETERANS THE OPPORTUNITY TO ENTER INTO A CONTRACTUAL AGREEMENT WITH THE VA FOR MEDICAL CARE SERVICES IN ACCORDANCE WITH SPECIFIC MEDICAL BENEFIT PACKAGES."

THE VA PLANS TO BEGIN TESTING THE ENROLLMENT CONCEPT BY OPERATING A PROTOTYPE ENROLLMENT SYSTEM IN THE VA MEDICAL DISTRICT NO. 1 LOCATED IN MASSACHUSETTS. THE VA WILL AUTOMATICALLY ENROLL ALL VETERANS WITH SERVICE -CONNECTED DISABILITIES, VETERAN PENSIONERS WITH NONSERVICE CONNECTED DISABILITIES, AND VETERANS WITH NONSERVICE CONNECTED DISABILITIES RECEIVING CARE LOCATED WITHIN THE AREA SELECTED FOR THE STUDY. THE VA WILL ENROLL OTHER VETERANS WHO ARE ELIGIBLE FOR SERVICES AT PRESENT TO THE EXTENT THAT RESOURCES ALLOW. THE VA FACILITIES PARTICIPATING IN THE RESEARCH WILL PROVIDE VETERANS WHO ARE ENROLLED IN THE PROJECT WITH MEDICAL CARE IN ACCORDANCE WITH COMPREHENSIVE MEDICAL BENEFIT PACKAGES. ELIGIBLE BUT UNENROLLED VETERANS WHO PRESENT THEMSELVES TO PARTICIPATING FACILITIES FOR TREATMENT WILL APPARENTLY BE ENROLLED WHEN TREATMENT IS REQUESTED TO THE EXTENT RESOURCES ALLOW. SEE PROTOCOL, PAGE 23. ALSO, UNENROLLED, ELIGIBLE VETERANS WILL CONTINUE TO BE ENTITLED TO CARE AT VA FACILITIES OTHER THAN THE ONE USED AS THE INITIAL TEST FACILITY IN ACCORDANCE WITH EXISTING ELIGIBILITY REQUIREMENTS.

CONCERNING TREATMENT OF UNENROLLED, ELIGIBLE VETERANS, A LETTER FROM VA'S CHIEF MEDICAL DIRECTOR TO THE DIRECTOR, MEDICAL DISTRICT NO. 1, ATTACHED TO THE PROTOCOL AS APPENDIX B, STATES THAT THE HEALTH CARE FACILITY USED AS A PROJECT PROTOTYPE "MUST BE IN CLOSE PROXIMITY TO ANOTHER VA HEALTH CARE FACILITY SO THAT THOSE VETERANS NOT ENROLLED AT THE INITIAL TEST FACILITY CAN RECEIVE CARE FROM ANOTHER VA FACILITY AND THAT OBTAINING THIS CARE WILL NOT UNDULY BURDEN THE VETERAN BY GREATLY INCREASING HIS TRAVEL TIME." FURTHER, SINCE ALL VETERANS WHO REQUEST ENROLLMENT WILL BE ENROLLED TO THE EXTENT RESOURCES ALLOW, IT COULD WELL BE THAT THE ONLY VETERANS NOT ENROLLED IN THE PROTOTYPE PROJECT WILL BE THOSE WHO ELECT TO DECLINE THE OPPORTUNITY TO ENROLL.

UNDER THE BENEFIT PACKAGE, AS PROPOSED, ENROLLEES WOULD RECEIVE INPATIENT HOSPITAL CARE WHEN MEDICALLY NECESSARY, HOME HEALTH CARE SERVICES IF MEDICALLY INDICATED FOLLOWING DISCHARGE FROM A HOSPITAL, FULL TIME OR INTERMEDIATE NURSING HOME CARE IN LIEU OF HOSPITALIZATION AS MEDICALLY INDICATED, DOMICILIARY SERVICES AS AVAILABLE IF MEDICALLY INDICATED, AND MEDICAL, SURGICAL AND MENTAL HEALTH AMBULATORY CARE SERVICES AS MEDICALLY INDICATED. (SEE PROTOCOL, PG. 25).

THE VA JUSTIFIES THE PROVISION OF SERVICES AS SET OUT IN THE PROTOCOL ON THE BASIS OF THE RESEARCH AUTHORITY PROVIDED BY 38 U.S.C. 4101 (1976). PARAGRAPH (C)(1) OF SEC. 4101 AUTHORIZES THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS' ADMINISTRATION TO CARRY OUT A PROGRAM OF HEALTH CARE SERVICES RESEARCH SO THAT THE DEPARTMENT CAN BETTER CARRY OUT ITS PRIMARY FUNCTION. IT PROVIDES:

"(C)(1) IN ORDER TO CARRY OUT MORE EFFECTIVELY THE PRIMARY FUNCTION OF THE DEPARTMENT OF MEDICINE AND SURGERY AND IN ORDER TO CONTRIBUTE TO THE NATION'S KNOWLEDGE ABOUT DISEASE AND DISABILITY, THE ADMINISTRATOR SHALL, IN CONNECTION WITH THE PROVISION OF MEDICAL CARE AND TREATMENT TO VETERANS, CARRY OUT A PROGRAM OF MEDICAL RESEARCH (INCLUDING BIOMEDICAL, PROSTHETIC, AND HEALTH CARE SERVICES RESEARCH, AND STRESSING RESEARCH INTO SPINAL CORD INJURIES AND DISEASES AND OTHER DISABILITIES THAT LEAD TO PARALYSIS OF THE LOWER EXTREMITIES). ***."

THE "PRIMARY FUNCTION" OF THE DEPARTMENT IS:

"*** TO PROVIDE A COMPLETE MEDICAL AND HOSPITAL SERVICE AS PROVIDED IN THIS TITLE (TITLE 38 OF THE UNITED STATES CODE) AND IN REGULATIONS PRESCRIBED BY THE ADMINISTRATOR PURSUANT THERETO, FOR THE MEDICAL CARE AND TREATMENT OF VETERANS." 38 U.S.C. SEC. 4101(A).

RESEARCH BY VA WHICH HAS AS ITS OBJECTIVE EXPLORING ALTERNATIVE MEDICAL SERVICES DELIVERY SYSTEMS CLEARLY FALLS WITHIN THE AUTHORIZATION OF SEC. 4101(C)(1) FOR "HEALTH CARE SERVICE RESEARCH" FOR THE PURPOSE OF CARRYING OUT VA'S PRIMARY FUNCTION OF PROVIDING COMPLETE MEDICAL AND HOSPITAL SERVICE FOR THE MEDICAL CARE AND TREATMENT OF VETERANS. IN FACT, THIS TYPE OF RESEARCH HAS BEEN CONDUCTED UNDER THE SOCIAL SECURITY ACT IN CONNECTION WITH MEDICARE AND MEDICAID SERVICES WITH FULL CONGRESSIONAL APPROVAL, AND HAS RESULTED IN THE DEVELOPMENT OF HEALTH MAINTENANCE ORGANIZATIONS AND OTHER SERVICE DELIVERY OPTIONS WHICH HAVE APPARENTLY BEEN COST EFFECTIVE.

ON THE QUESTION OF WHETHER THIS PILOT PROJECT WILL CONFLICT WITH EXISTING ELIGIBILITY CRITERIA - EITHER BECAUSE ELIGIBLE VETERANS WON'T RECEIVE CARE THEY ARE OTHERWISE ENTITLED TO OR BECAUSE INELIGIBLE VETERANS WILL - THE VA GENERAL COUNSEL MEMORANDUM FURNISHED WITH YOUR REQUEST STATES THAT THE RESTRICTIONS OF 38 U.S.C. 610 AND 612 (AND BY IMPLICATION THE OTHER ELIGIBILITY REQUIREMENTS CONTAINED BETWEEN SECS. 610 AND 620 OF THAT TITLE) DO NOT APPLY TO THIS PROPOSED TEST OF AN ENROLLMENT SYSTEM BECAUSE OF THE RESEARCH ASPECT OF THE PROGRAM. THE MEMORANDUM ALSO CAUTIONS AGAINST DENYING CARE TO A NON-ENROLLED, NONSERVICE-CONNECTED VETERAN WHO WOULD HAVE OTHERWISE BEEN ENTITLED TO RECEIVE CARE.

THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT - INDEPENDENT AGENCIES APPROPRIATION ACT 1980, PUB. L. NO. 96-103, 96TH CONG., 93 STAT. 771, NOVEMBER 5, 1979, WHICH APPROPRIATED FUNDS AVAILABLE UNTIL SEPTEMBER 30, 1981 FOR VA'S MEDICAL AND PROSTHETIC RESEARCH, AS WELL AS FUNDS FOR VA MEDICAL CARE GENERALLY, PROVIDES AS FOLLOWS WITH RESPECT TO ELIGIBILITY FOR MEDICAL SERVICES:

"NO PART OF THE FOREGOING APPROPRIATIONS SHALL BE AVAILABLE FOR HOSPITALIZATION OR EXAMINATION OF ANY PERSONS EXCEPT BENEFICIARIES ENTITLED UNDER THE LAWS BESTOWING SUCH BENEFITS TO VETERANS, UNLESS REIMBURSEMENT OF COSTS IS MADE TO THE APPROPRIATION AT SUCH RATES AS MAY BE FIXED BY THE ADMINISTRATOR OF VETERANS AFFAIRS."

SECTIONS 610 THROUGH 620 OF TITLE 38 OF THE U.S.C. (1976) CLASSIFY AND DETAIL THE MEDICAL SERVICES THAT VA IS AUTHORIZED TO PROVIDE TO DIFFERENT CLASSES OF VETERANS. IN GENERAL, THESE SECTIONS DISTINGUISH BETWEEN VETERANS WITH SERVICE CONNECTED DISABILITIES AND VETERANS WITH NONSERVICE CONNECTED DISABILITIES WHO ARE UNDER 65 BY PROVIDING MEDICAL SERVICES IN THE LATTER CASE ONLY WHERE THE VETERAN IS UNABLE TO DEFRAY THE COST OF MEDICAL CARE. THERE ARE OTHER DISTINCTIONS RELATED TO THE EXISTENCE OR EXTENT OF SERVICE-CONNECTED DISABILITIES. FOR EXAMPLE, OUTPATIENT DENTAL SERVICES AND TREATMENT ARE AVAILABLE TO VETERANS WITH NONSERVICE CONNECTED DENTAL CONDITIONS OR DISABILITIES ONLY WHERE NECESSARY TO COMPLETE TREATMENT BEGUN IN CONNECTION WITH HOSPITAL CARE (SEC. 612 (B)(5)). AMBULATORY OR OUTPATIENT CARE IS AVAILABLE TO VETERANS WITH SERVICE CONNECTED DISABILITIES RATED AT LESS THAN 50 PERCENT OR WITH NONSERVICE CONNECTED DISABILITIES ONLY WHERE NECESSARY TO PREPARE FOR OR OBVIATE THE NEED OF HOSPITAL ADMISSION OR FOLLOWING DISCHARGE FROM IN-HOSPITAL TREATMENT (SEC. 612 (F)(1)). ALSO, AN ORDER OF PRIORITY FOR AVAILABLE MEDICAL TREATMENT OTHER THAN HOSPITAL, NURSING HOME, AND DOMICILIARY CARE GIVES FIRST PREFERENCE TO VETERANS WITH SERVICE-CONNECTED DISABILITIES (SEC. 612 (I)).

WE INFORMALLY REQUESTED THE VIEWS OF VA'S OFFICE OF GENERAL COUNSEL CONCERNING THE IMPACT OF THE ABOVE QUOTED APPROPRIATION ACT LIMITATION ON THE OPINION EXPRESSED IN THE MEMORANDUM FURNISHED WITH YOUR LETTER THAT ELIGIBILITY RESTRICTIONS DO NOT APPLY TO THE ENROLLMENT PROGRAM SO LONG AS IT IS FUNDED FROM MONEY ALLOCATED FOR HEALTH SERVICES RESEARCH. REPRESENTATIVE OF VA'S OFFICE OF GENERAL COUNSEL INFORMED US THAT THE APPROPRIATION ACT LIMITATION HAS APPEARED IN APPROPRIATION ACTS FOR MANY YEARS. VA'S REPRESENTATIVE ALSO INFORMED US THAT VA'S LONGSTANDING POSITION, SUPPORTED BY A NUMBER OF VA LEGAL OPINIONS, IS THAT THE LIMITATION WAS ORIGINALLY DEVISED TO ASSURE THAT REIMBURSEMENT FOR MEDICAL CARE FURNISHED UNDER VA'S MEDICAL CARE APPROPRIATION WAS OBTAINED FROM USERS OF VA FACILITIES WHO ARE TREATED AT VA FACILITIES ON AN EMERGENCY BASIS, NOT TO UNDULY RESTRICT LEGITIMATE MEDICAL RESEARCH BY VA. VA DRAWS A CLEAR DISTINCTION BETWEEN THE PROVISION OF ORDINARY MEDICAL CARE AND TREATMENT AND THE CONDUCT OF RESEARCH AND MAINTAINS THAT FUNDS APPROPRIATED FOR RESEARCH PURPOSES MAY BE USED TO TREAT EVEN INELIGIBLE VETERANS SO LONG AS THE RESEARCH FALLS WITHIN ONE OF THE AREAS SPECIFIED IN 38 U.S.C. SEC. 4101(C)(1), NOTWITHSTANDING THE APPROPRIATION ACT LIMITATION.

VA'S REPRESENTATIVE ALSO STATED THAT THIS INTERPRETATION OF ITS RESEARCH AUTHORITY IS WELL KNOWN TO AND HAD LONG BEEN ACQUIESCED IN BY THE COGNIZANT CONGRESSIONAL COMMITTEES.

IN OUR OPINION, THE BETTER READING OF THE APPROPRIATION ACT LIMITATION IS THAT IT SHOULD BE INTERPRETED AS REQUIRING THAT MEDICAL SERVICES EVEN FOR RESEARCH PURPOSES MAY BE PROVIDED ONLY TO VETERANS ELIGIBLE FOR MEDICAL TREATMENT UNDER 38 U.S.C. SECS. 610 THROUGH 620 BECAUSE IT APPLIES, BY ITS TERMS, TO ALL OF VA'S APPROPRIATIONS, INCLUDING THOSE FOR MEDICAL AND PROSTHETIC RESEARCH. BECAUSE OF THE NEED TO PROVIDE AN EXPEDITIOUS RESPONSE, WE DID NOT ANALYZE THE AUTHORITIES RELIED ON BY VA, AND WITHOUT ANALYZING THEM ARE RELUCTANT TO CONCLUDE THAT THE MORE RESTRICTIVE READING OF VA'S AUTHORITY IS THE CORRECT ONE.

IN ANY EVENT, IT IS NOT CLEAR FROM THE PROTOCOL WHETHER EXPANDED BENEFITS WILL, IN FACT, BE PROVIDED TO VETERANS ENROLLING IN THE PILOT PROJECT. (AS INDICATED ABOVE, VA HAS STATED THAT NO ELIGIBLE VETERANS WILL BE DENIED CARE DURING THE PILOT PROJECT.) THE PROTOCOL DOES NOT DESCRIBE IN DETAIL THE FULL EXTENT OF SERVICES TO BE PROVIDED. HOWEVER, READ AS A WHOLE, THE PROTOCOL'S DESCRIPTION OF THE PROGRAM'S BENEFIT PACKAGE INDICATES THAT DISTINCTIONS WILL BE MADE BETWEEN CLASSES OF VETERANS ON ELIGIBILITY GROUNDS. THIS, THE PROTOCOL STATES AT PAGE 26 THAT "ENROLLED NONSERVICE CONNECTED VETERANS WILL BE LIMITED TO NON-VA NURSING HOME CARE IN ACCORDANCE WITH EXISTING VA REGULATIONS" AND THAT "DENTAL SERVICES AND PROSTHETIC APPLIANCES WILL BE PROVIDED IN ACCORDANCE WITH EXISTING VA REGULATIONS." IN ADDITION, THE PROTOCOL STATES, AT PAGE 20, THAT

"... THE PACKAGING OF THE BENEFITS FOR THE NON-SERVICE-CONNECTED VETERANS, AS CONTAINED IN THIS PROPOSAL SHOULD IMPROVE THEIR ADMINISTRATIVE ACCESS TO THE VA, BUT IT SHOULD NOT SIGNIFICANTLY CHANGE THE KINDS OF SERVICES TO WHICH HE OR SHE IS ENTITLED."

THE PROTOCOL CONTAINS NUMEROUS OTHER REFERENCES TO ELIGIBILITY REQUIREMENTS AND TO THE TAILORING OF BENEFIT PACKAGES TO THOSE REQUIREMENTS.

ON THE OTHER HAND, THE PROTOCOL PROPOSES TO PROVIDE AMBULATORY CARE FOR ALL ENROLLED VETERANS "AS MEDICALLY INDICATED" RATHER THAN ON THE BASIS OF THE STRICTER HOSPITALIZATION-RELATED STANDARD ESTABLISHED FOR MOST VETERANS BY 38 U.S.C. SEC. 612 (F)(1). IF THIS PHRASE IS INTERPRETED TO MEAN THAT AMBULATORY CARE MAY ONLY BE PROVIDED AS NECESSARY TO PREVENT A RESUMPTION OF OR FUTURE HOSPITALIZATION, IT WOULD APPEAR TO LIMIT CARE TO OTHERWISE ELIGIBLE VETERANS. ALSO, WHILE THE EXTENT OF ANY POSSIBLE OR INTENDED EXPANSION OF BENEFITS IS NOT SPECIFIED, THE PROTOCOL DESCRIPTION OF THE BENEFITS PACKAGES STATES "(VA) GENERAL COUNSEL HAS ALREADY EXPRESSED SUPPORT FOR EXPANDED BENEFITS TO NONSERVICE CONNECTED VETERANS IN THE ENROLLMENT PROCESS ..." FINALLY, THE PROTOCOL DOES NOT DESCRIBE WHETHER THE CONTINUED ELIGIBILITY OF PREVIOUSLY ENROLLED VETERANS WHO HAVE TO DEMONSTRATE FINANCIAL NEED BEFORE SERVICES MAY BE PROVIDED WILL BE VERIFIED BEFORE MEDICAL CARE IS PROVIDED.

IN OUR OPINION, THE PROTOCOL SHOULD BE AMENDED TO MAKE IT CLEAR WHETHER IT IS INTENDED THAT SERVICES WILL BE PROVIDED TO VETERANS NOT OTHERWISE ELIGIBLE UNDER 38 U.S.C. SECS. 612 THROUGH 620. IF THAT IS THE CASE, IT IS OUR FURTHER OPINION THAT A MORE COMPLETE LEGAL JUSTIFICATION SHOULD BE PROVIDED BY VA.