GERALD M. CROSS, MD, FAAFP
PRINCIPAL DEPUTY UNDER SECRETARY FOR HEALTH
DEPARTMENT OF VETERANS AFFAIRS
SUBCOMMITTEE ON HEALTH
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
September 9, 2008
Good morning Mr. Chairman and members of the Subcommittee. Thank you for inviting me here today to present the Administration’s views on two bills, H.R. 3051, the “Heroes at Home Act of 2007,” and H.R. 6153, the “Veterans’ Medical Personnel Recruitment and Retention Act of 2008.” I am accompanied by Mr. Walter A. Hall, Assistant General Counsel, and Ms. Joleen Clark, Chief Officer, Workforce Management and Consulting, Veterans Health Administration.
H.R. 3051. “Heroes at Home Act of 2007”
H.R. 3051 includes several provisions intended to enhance care and services to veterans and particularly new OEF/OIF veterans suffering from traumatic brain injury. Section 2 of H.R. 3051 would require VA to establish a program to train and certify family members of veterans and servicemembers with traumatic brain injury (TBI) as personal care attendants. VA would be responsible for developing curricula for training family caregiver personal care attendants and for determining the eligibility of family members to participate in the program. A family caregiver who is certified as a personal care attendant would be eligible for compensation from VA for care provided to a veteran or service member.
Mr. Chairman, VA does not support section 2 because VA already has a program in place that accomplishes the goals of that section in a far more efficient and effective manner. To keep VA from being in the position of having to directly oversee the quality of care provided by individual caregivers, including family members, VA uses a third-party to obtain needed caregiver services. Implementing the bill, as written, would not only be impractical but also inadvisable. The resulting arrangement could well give rise to potential conflicts concerning the veteran’s care between the family member-caregiver and the veteran, placing VA in an untenable position. We strongly urge the Congress to let us continue to obtain caregiver services as we currently do under our Home Health Care Program.
This bill provides that certified family caregivers shall be eligible for compensation but it does not state the nature of such compensation – is it payment for services provided so that the caregivers are VA employees or is it a benefit and, if so, is it to the veteran/service member or to the caregiver? Whether the compensation is for employment or is a benefit raises significant legal issues relating to liability, taxation and VA’s relationship and responsibilities to both the patient and the caregiver. We also note the bill would make VA responsible for compensating caregivers of both veterans and active duty members of the Armed Forces. That responsibility to pay compensation may be that only relationship VA has with active duty members.
Under our program, VA currently contracts with more than 4,000 home health agencies that are approved by the Centers for Medicare and Medicaid Services (CMS) and/or are state licensed. Many of these agencies have expertise in training and certifying home health aides, including family members. Many operate in rural communities. VA refers interested family members to these agencies and, after their training, these family caregivers become paid employees of the agencies. VA provides remuneration pursuant to agreements with the home health agencies, thus compensating family caregivers indirectly. Importantly, VA also ensures that these home health agencies meet and maintain training and certification requirements specific to caregivers of TBI patients. For the reasons we have discussed, this model is preferable to that which would be required by section 2.
Subsection 3(a) of H. R. 3051 would require VA to conduct comprehensive outreach to enhance the awareness of veterans and the general public about the symptoms of post traumatic stress disorder (PTSD) and TBI and available VA health and other services. Mr. Chairman given the extensive and expanding outreach program that we already have in place to inform veterans and the general public about PTSD and TBI and the services we provide to veterans with these symptoms and injuries, this statutory mandate is not necessary. Let me take a moment to describe just some of the exciting new efforts underway to reach out to returning veterans.
VA is making intensive outreach efforts to veterans as they leave active duty. Upon return from deployment, every eligible veteran receives a letter from the Secretary of Veterans Affairs informing him or her of the availability of VA services near his or her home. VA is currently sending out follow-up letters to all of those returning Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF) veterans who have not come to VA for care, to reinforce the point that care is available through the Department. As of January 2008, more than 796,000 letters had been mailed. On April 24 of this year, the Secretary announced the creation of a “Combat Veteran Call Center” to begin contacting the nearly 570,000 recent combat veterans who have not used VA health care services to ensure they know about VA’s medical services and other benefits.
In addition, the Vet Center program reaches out to returning veterans in their communities. Informing combat veterans and family members about the availability of readjustment counseling services is one of the primary missions of the Vet Center program. In response to the growing numbers of veterans returning from combat in OEF/OIF, the Vet Centers initiated an aggressive outreach campaign to welcome home and educate returning service members at military demobilization and National Guard and Reserve sites. The Vet Center program also provides access to other VHA and Veterans Benefits Administration (VBA) programs. To augment this effort, the Vet Center program recruited and hired 100 OEF/OIF veterans to provide the bulk of this outreach to their fellow veterans. Outreach provided by fellow combat veterans promotes a peer relationship that helps veterans with PTSD and other readjustment problems overcome any perceived stigma that may be associated with asking for professional assistance. Vet Center staff also participate with VAMC representatives in all onsite and call center Post-Deployment Health Reassessment events across the country, and provide outreach throughout the local community at events that feature veterans and family members. This is essential for making effective contact with veterans who have already returned to their home communities and are resuming normal family and work life.
VA is preparing a series of public service announcements to inform veterans about various VA services. As a first action, VA has released a series of posters and other public service announcements on VA's Suicide Prevention Hotline. Additionally, VA is using non-traditional approaches to disseminate outreach information, including presentations about mental health issues that are played on the Music Television Channel (MTV) and targeted at young OEF/OIF veterans and their families. VA is also developing a comprehensive nation-wide TBI awareness educational campaign that targets active duty service members and veterans, media and the general public, Congress, Veterans Service Organizations, State VA Offices, and a variety of other key stakeholder groups. Some primary messages included in this campaign are identification of the symptoms of mild/moderate TBI, how to access VA screenings and treatment, and the benefits and advantages of receiving care from VA versus that of the private sector. Lastly, VA's National Center for PTSD website, www.ncptsd.va.gov, posts regularly updated Fact Sheets and other information on PTSD available for the general public.
Mr. Chairman, VA also believes that Subsection 3(b), which would require VA to share best practices developed for the treatment of PTSD and TBI with non-VA health practitioners, is redundant of activities already in place and therefore unnecessary. VA‘s reports and other documentation on best practices are generally a matter of public record. Moreover, VA participates in health care conferences where best practices are exchanged and works continually with national organizations to share medical information. The following are a few examples of VA’s sharing of best practices.
Section 4 would require DoD and VA to jointly establish a demonstration project to assess the feasibility and advisability of using telehealth technology to assess cognitive functioning of members and former members of the Armed Forces who have sustained head trauma, in order to improve the diagnosis and treatment of TBI. In selecting sites, priority would be given to locations providing services in rural areas. This section would require, among other things, that the demonstration project address the use of telehealth technology to assess the feasibility of obtaining information regarding the nature of any brain injury incurred by a servicemember or veteran and any symptom of TBI in such individuals. Mr. Chairman, VA supports the goals of this provision but cannot support the section as written.
Section 4, as written, is too prescriptive and detailed. VA and DoD should be allowed more flexibility in executing the demonstration project. The technology is evolving and new ideas for utilizing the telehealth networks are emerging. DoD and VA should be given every opportunity to discover the possibilities of maximizing the technology rather than focusing on the enumerated requirements currently specified in Section 4. We would be pleased to work with Subcommittee staff to develop legislative language that would make the project more tenable and productive.
VA is continuing to develop cost estimates for H. R. 3051 and will have the results for the Subcommittee as soon as possible.
“Veterans’ Medical Personnel Recruitment and Retention Act of 2008”
H.R. 6153 contains several provisions intended to enhance VA's ability to recruit and retain nurses and other health-care professionals. Many of these provisions would be helpful, and we can support them. However, several of the provisions would not be helpful or are otherwise flawed.
Authority to Extend Hybrid Status to Additional Occupations
Subsection 2(a) of the bill would amend section 7401(3) to add "nurse assistants" to the list of so called hybrid occupations for which the Secretary is authorized to appoint and to determine qualifications and rates of pay under title 38. In addition, it would authorize the Secretary to extend hybrid status to "such other classes of health care occupations as the Secretary considers necessary for the recruitment and retention needs of the Department" subject to a requirement to provide 45 days' advance notice to the Veterans' Affairs Committees and OMB. Before providing such notice, VA would be required to solicit comments from labor organizations representing employees in such occupations.
VA favors such a provision. Nursing Assistants are critical to the Veterans Health Administration's (VHA) ability to provide care for a growing population of older veterans, who are high-acuity patients and/or frail elderly requiring 24-hour nursing care.
Turnover data, 10.5 percent for 2006 and 11.1 percent for 2007, illustrate the great difficulty VA experiences in retaining this occupation. It is increasingly critical for VHA to be able to quickly and easily employ these nurse extenders. The same holds true for other hard-to-recruit health care occupations. This bill would give the Secretary the ability to react quickly when it is determined that these authorities would be useful in helping in recruiting and retaining a critical occupation without seeking additional legislative authority. However, the bill language should be modified to specifically apply to occupations that clearly involve the delivery of health care. In addition, because this authority involves the conversion of title 5 occupations to title 38 hybrid, the 45-day notice requirement should be modified to add OPM. Thus, we recommend modifying subsection 2(a) of the bill to read:
(a) SECRETARIAL AUTHORITY TO EXTEND TITLE 38 STATUS TO ADDITIONAL POSITIONS.
(1) IN GENERAL.-Paragraph (3) of section 7401 of title 38, United States Code, is amended by striking "and blind rehabilitation outpatient specialists." and inserting in its place the following: "blind rehabilitation outpatient specialists, and such other classes of health care occupations as the Secretary considers necessary for the recruitment and retention needs of the Department who:
(A) are employed in the Administration (other than administrative, clerical, and physical plant maintenance and protective services employees);
(B) are paid under the General Schedule pursuant to section 5332 of title 5;
(C) are determined by the Secretary to be providing either direct patient care services or services incident to direct patient care services; and
(D) would not otherwise be available to provide medical care and treatment for veterans.
(2) The Secretary's authority provided in paragraph (1) is subject to the following requirements:
"(A) Not later than 45 days before the Secretary appoints any personnel for a class of health care occupations that is not specifically listed in this paragraph, the Secretary shall submit to the Committee on Veterans' Affairs of the Senate, the Committee on Veterans' Affairs of the House of Representatives, the Office of Management and Budget and the Office of Personnel Management notice of such appointment.
"(B) Before submitting notice under subparagraph (A), the Secretary shall solicit comments from any labor organization representing employees in such class and include such comments in such notice."
Probationary Periods for Part-Time Nurses
Subsection 2(b) provides for probationary periods for part-time (PT) Registered Nurses (RN) and revises the probationary period for RNs, both fulltime (FT) and PT, from 2 years to its equivalency in hours, 4180. It also provides that a PT appointment of a person who previously served on a FT basis in a "pure" title 38 position (7401(1)), and completed a probationary period in the FT position would not have to serve a probationary period in the PT "pure" title 38 position. VA opposes this provision because it is technically flawed and would not be helpful.
Part-time title 38 employees, including RNs, do not serve probationary periods. Probationary periods apply to full-time, permanent employees. We see no benefit to creating a probationary period for part-time nurses. Moreover, a probationary period for PT RNs would not make them the equivalent of tenured employees, for example for purposes of discipline or discharge.
Prohibition on Temporary Part-Time Nurse Appointments In Excess of 4,180 Hours
Subsection 2(c) would amend section 7405(f)(2) to limit temporary part-time appointments of hybrid (Licensed Practical Nurse (LPN) and Licensed Vocational Nurse (LVN)) nurses to no more than 4180 hours. VA opposes this provision. Currently, all part-time hybrid appointments may be for periods exceeding 1 year. The purpose of this restriction on LPNs and LVNs is not apparent. Operationally, it could hamstring VHA when it determines using that part-time LPNs and LVNs best serve patient care needs. The result could be to deprive VA of highly qualified LPNs and LVNs wishing to work only on a part-time basis, for example, for personal and family reasons.
Reemployed Annuitant Offset Waiver
Subsection 2(d) generally provides that annuitants may be temporarily reemployed in a title 38 position without being subject to having their salary offset by the amount of their annuity.
VA instead favors a Government-wide policy on waivers of this offset. Under current law, VA must obtain a waiver for individuals on a case-by-case basis, or obtain delegated waiver authority from the Office of Personnel Management (OPM). VA has done this for some critical occupations. The Administration has submitted a bill, which VA favors, to provide agencies with the authority to grant offset waivers to facilitate the temporary part-time reemployment of annuitants, which has been introduced as H.R. 3579/S. 2003. With many VA employees at or near retirement eligibility the potential for significant losses of mission-critical leaders and technical experts is a significant threat to VA's capability to deliver high quality health care to our nation's veterans. VA access to retired title 38 health care providers, without financial penalty, would enhance our ability to meet these challenges and maintain the continuity of quality patient care, including support in times of disaster. As explained by OPM, 3579/S. 2003 "would allow Federal agencies to rehire recently retired employees to assist with short-term projects, fill critical skill gaps and train the next generation of Federal employees."
Minimum Rate of Basic Pay for Section 7306 Appointees Set to Lowest Rate of Basic Pay for SES
Subsection 2(e) would amend section 7404(a) to add a provision setting the basic pay of non-physician/dentist section 7306 employees at not less than the lowest rate of basic pay for the Senior Executive Service (SES). This amendment would be effective the first pay period that is 180 days after enactment.
VA supports the principle of pay equity with SES rates for its section 7306 non-physician/dentist executives as a tool needed to meet the challenge of recruitment and retention. However, we recommend some modifications in the bill's language.
Equity in pay for executive level managers and consultants is essential to attracting and retaining candidates for key positions. The pay schedule for 38 USC §7306 appointees is now capped at the pay rate for Level V of the Executive Schedule (currently $139,600). Locality pay is paid up to the rate for Level III (currently $158,500). Individuals appointed under 38 USC §7306 serve in executive level positions that are equivalent in scope and responsibility to positions in the SES. By comparison, employees in the SES receive a significantly higher rate of basic pay. The maximum SES pay limitation is the rate for Level II (currently $172,200) when OPM has certified that an agency meets all regulatory criteria for certified performance appraisal systems, including the employing agency makes meaningful distinctions based on performance.
We estimate the costs of this provision to be $225,290 in FY 2009 and $2,466,862 over a 10-year period.
We recommend modifying this proposal to state that the basic pay of non-physician/dentist section 7306 employees be set at the rates of pay for SES employees under section 5382 of title 5. This modification would allow VA executive pay to track the full range of SES pay. The SES pay system conditions pay up to EL II on OPM certification that an agency's SES rating system meets all regulatory criteria for certified performance appraisal systems. In this regard we note that VHA uses the same rating system for its section 7306 executives as it uses for its SES members. OPM has certified VA’s SES performance appraisal system in the past, and it is currently certified by OPM through calendar year 2009. For consistency, we also recommend that the bill be modified to require that the Secretary make the same certification for the rating system covering section 7306 employees. Thus, we suggest that subsection 2(e)(3) be modified to read as follows:
"(3) Positions to which an Executive order applies under paragraph
(1) and are not described by paragraph (2) shall be paid basic rates of pay in accordance with section 5382 of title 5 for Senior Executive Service positions and not greater than the rate of basic pay payable for level III of the Executive Schedule; or if the Secretary certifies that the employees are covered by a performance appraisal system meeting the certification criteria established by regulation under section 5307(d), level II of the Executive Schedule."
Comparability Pay Program for Section 7306 Appointees
Subsection 2(f) would amend section 7410 to add a new subsection to establish "comparability pay" for non-physician/dentist section 7306 employees of not more than $100,000 per employee in order to achieve annual pay levels comparable to the private sector. Similar to provisions for RN Executive Pay in section 7452(g), it would provide that "comparability pay" would be in addition to other pay, awards and bonuses; would be considered base pay for retirement purposes; would not be base pay for adverse action purposes; and could not result in aggregate pay exceeding the annual pay of the President.
VA supports the concept of comparability pay for its non-physician/dentist executives. However, at this time we cannot support this proposal because it is a
potentially precedent-setting departure from the unitary approach to government-wide SES pay. The Department is evaluating alternative proposals that may be more appropriate in addressing the comparability pay issues of these executives.
We estimate the cost of this provision to be $ 1,165,500 for FY 2009 and $12,761,900 over a 10-year period.
Special Incentive Pay for Department Pharmacist Executives
Subsection 2(g) would further amend section 7410 to authorize recruitment and retention special incentive pay for pharmacist executives of up to $40,000. VA's determination of whether to provide and the amount of such incentive pay would be based on: grade and step, scope and complexity of the position, personal qualifications, characteristics of the labor market concerned, and such other factors as the Secretary considers appropriate. As with RN Executive Pay and comparability pay added by subsection (l), it would provide that "comparability pay" would be in addition to other pay, awards and bonuses; would be considered base pay for retirement purposes; would not be base pay for adverse action purposes; and could not result in aggregate pay exceeding the annual pay of the President.
This provision would provide a retention incentive to about 40 positions: pharmacy benefit managers (PBM), consolidated mail outpatient pharmacy (CMOP) directors and VISN formulary leaders (VFL). Although VA is facing worsening pay compression issues within the ranks of senior pharmacy program managers in the VHA, we cannot support this provision because it will not address the Department's retention needs in the long-term. The Department is evaluating alternative proposals that will be more appropriate in addressing the recruitment and retention needs of our pharmacy executives.
We estimate the cost of this provision to be $ 1,391,500 for FY 2009 and $16,324,220 over a 10-year period.
Section 2(h) concerns physician/dentist pay. VA supports this provision.
Paragraph (1) would provide that the title 5 non-foreign cost of living adjustment allowance for physicians and dentists would be determined as a percentage of base pay only. This would clarify the application of the title 5 non-foreign cost of living adjustment allowance to VHA physicians and dentists. The VA physician/dentist pay statute, 38 U.S.C. § 7431, does not address how the allowance is determined for physicians and dentists. We recommend that this provision be amended to clarify that it is applicable only to these physicians and dentists employed at Department facilities in Alaska, Hawaii, and Puerto Rico. These are the only Department facilities to which the title 5 non-foreign cost of living adjustment allowance is applicable.
Paragraph (2) would amend section 7431 (c)(4)(B)(i) to exempt physicians and dentists in executive leadership provisions from the panel process in determining the amount of market pay and tiers for such physicians and dentists. In situations where physicians or dentists occupy executive leadership positions such as chief officers, network directors, and medical center directors, the consultation of a panel has some limitations. The small number of physicians and dentists who would qualify as peers for the executive leaders results in their serving on each other's compensation panels and, in some cases, on their supervisor's panel. Providing the Secretary with discretion to identify executive physician/dentists positions that do not require that panel process would resolve these issues.
Paragraph (3) would provide an exception to the prohibition on the reduction of market pay for changes in board certification or reduction of privileges, correcting an oversight in the recent revision of the physician/dentist pay statute. This modification would allow VA to address situations where there is a loss of board certification or an adverse reduction in clinical privileges. No costs are associated with this provision.
RN and CRNA Pay
Subsections 2(i) and 2(j), relate to RN and Certified Registered Nurse Anesthetist (CRNA) Pay.
Section 2(i) would amend the cap for registered nurse to maximum rate of EL V or GS-15, whichever is greater. The current cap is the rate for EL V. Subsection (j) would amend section 7451 (c)(2) to exempt CRNAs from the current cap of EL V.
It is important for pay caps to be both fiscally responsible and sufficient to promote employee recruitment and retention. These proposals are not consistent with these principles. We note the alternative GS-15 cap would be meaningless inasmuch as it already is lower than the existing cap that is set at EL V, with a difference of about $15,000. Moreover, it is unclear whether this alternative cap would be at the GS-15 rate before locality pay or after locality pay. The CRNA cap would leave CRNA pay rates completely uncapped, which would allow rates to potentially exceed those of physicians and dentists, the title Executive Schedule (Levels I -V), or the VA 7306 Schedule.
We would support this provision if the bill were amended to modify section 7451(c)(2) to read: "The maximum rate of basic pay for any grade for a covered position may not exceed the rate of basic pay established for positions in level IV of the Executive Schedule under section 5315 of title 5." This would increase the cap from level V to level IV for both RNs and CRNAs, consistent with the pay cap that applies to the GS locality pay system. We estimate the cost of this provision to be $4,803,964 for FY 2009 and $56,357,188 over a 10-year period.
Subsection 2(k) would make amendments to the RN locality pay system (LPS). These provisions are not helpful and unnecessary. No costs are associated with this provision.
Paragraph (1) would require the Under Secretary for Health to provide education, training, and support to VAMC directors in the "conduct and use" of LPS surveys. We are concerned that this provision's focus on facility-conducted surveys is at odds with Public Law Number 106-419, which enabled VAMCs to use third- party salary surveys whenever possible rather than VA-conducted surveys. The use of third- party surveys is in fact the preference of the Department. We recommend modifying this provision to read: "The Under Secretary for Health shall ensure appropriate education and training are available with regard to the conduct and use of surveys, including third party surveys, under this paragraph". This would cover both types of surveys. Paragraph (2) would require the annual report VAMCs must provide to VA Central Office to include the methodology for every schedule adjustment. These reports form the basis for the annual VA report to Congress. We are concerned that this provision, especially in conjunction with proposed paragraph 3, could result in the inappropriate disclosure of confidential salary survey data, contrary to current section 7451 (d)(5). It also would impose an onerous burden inasmuch as VHA has nearly 800 nurse locality pay schedules. We do note that VA policy does provide for how these surveys are to be obtained or conducted.
Paragraph (3) would require the most recent VAMC report on nurse staffing to be provided to any covered employee or employee's union representative upon request. This provision should be modified to specify at what point the report must be provided. It would not be appropriate to provide an individual a copy of the VAMC report before Congress receives the VA report.
Subsection 2(I) would increase the maximum payable for nurse executive special pay to $100,000. This provision would make the amount of nurse executive pay consistent with the Executive Comparability Pay in subsection 2(f). For the same reason we oppose subsection 2(f), we do not support this proposal. We estimate the cost of this provision to be $316,250 for FY 2009 and $3,710,053 over a 10-year period.
The caption for subsection 2(m) suggests it provides for eligibility of part-time nurses for certain nurse premium pay. However, many of the substantive amendments are not limited to part-time nurses, or to all registered nurses.
VA opposes subsection 2(m) as seriously flawed, unnecessary, and costly.
Subparagraph (1)(A) would amend section 7453 (a) to make part-time nurses eligible for premium pay under that section. However, part-time nurses already are eligible for section 7453 premium pay where they meet the criteria for such pay.
Subparagraphs (1)(B) and (1)(C) would require evening tour differential to be paid to all nurses performing any service between 6 pm and 6 am, and any service on a weekend, instead of just those performing service on a tour of duty established for those times to meet on-going patient care needs. Under current law, these differentials are limited to the RN's normal tour of duty and any additional time worked on an established tour.
The "tour of duty" in the current law reflects the requirement of ensuring adequate professional care and treatment to patients during off and undesirable tours. The limitation of tour differential and weekend pay only for service on a "tour of duty" rewards those employees who are subject to regular and recurring night and weekend work requirements. If that is changed to "period of service", any employees performing night or weekend work on an occasional or ad-hoc basis would also be entitled to this premium pay in addition to overtime pay, providing an inappropriate windfall for performing occasional work.
Subparagraph (2) would authorize title 5 VHA employees to receive 25 percent premium pay for performing weekend work on Saturday and Sunday. We understand the purpose of this provision is to limit the expansion of week-end premium pay to non-tour hours to registered nurses. However, it does not fully achieve that purpose. Pursuant to section 7454(a) and (b)(2), physician assistants, expanded-function dental auxiliaries, and hybrids are also entitled to week-end pay under section 7453. The expansion of week-end pay would apply to them as well. In addition, because physician assistants and expanded-function dental auxiliaries are entitled to all forms of registered nurse premium pay under section 7453, the expansion of the night differential premium pay would also apply to them. Furthermore, where VA has authorized section 7453 night differential for hybrids, the expansion of the night differential premium pay would apply to them as well.
Subsection 2(n) would add additional occupations to those exempt from the 28th step cap on title 38 special salary rates: LPNs, LVNs, and unspecified "other nursing positions otherwise covered by title 5". Notwithstanding the exemption, under current statute, title 38 special salary rates cannot exceed the rate for EL V. The language "nursing positions otherwise covered by title 5" is unclear as to what positions it would include. RNs are appointed under title 38, LPNs/LVNs are hybrids, and section 2(a)(2) of the bill would convert nursing assistants to hybrid. Moreover, it is not apparent why only these positions and not all positions authorized title 38 special rates would be exempted. Using the same formula for the cap on title 5 special rates would afford VA the most flexibility in establishing maximum rates for title 38 special rates. Adopting the title 5 fixed percentage formula would render the section 7455(c)(2) report for exceeding 94 percent of the grade maximum unnecessary, so we propose deleting it. Thus we
recommend amending section 7455 to read as follows:
(a)(1) Subject to subsections (b), (c), and (d), when the Secretary
determines it to be necessary in order to obtain or retain the services of
persons described in paragraph (2), the Secretary may increase the
minimum rates of basic pay authorized under applicable statutes and
regulations, and may make corresponding increases in all rates of the pay
range for each grade. Any increase in such rates of basic pay—
* * * *
(c) An increased minimum rate established under subsection (a) may not exceed the maximum rate of basic pay (excluding any locality-based comparability payment under section 5304 of title 5 or similar provision of law) for the grade or level by more than 30 percent, and no rate may be established under this section in excess of the rate of basic pay payable for level IV of the Executive Schedule.
Subsection 3(a)(1) would add new section 7459, imposing restrictions on nurse overtime. Section 7459 generally would prohibit mandatory overtime for nurses (RNs, LPNs, LVNs, nursing assistants, and any other nurse position designated by the Secretary). It would permit mandatory overtime by nurses under certain conditions: an emergency that could not have been reasonably anticipated; the emergency is non-recurring and not due to inattention or lack of reasonable contingency planning; VA exhausted all good faith, reasonable attempts to obtain voluntary workers; the affected nurses have critical skills and expertise; and the patient work requires continuity of care through completion of a case, treatment, or procedure. VA could not penalize nurses for refusing to work prohibited mandatory overtime. Section 7459 provides that nurses may work overtime hours on a voluntary basis.
VA favors this mandatory overtime restriction with the caveat that first and foremost, VA needs to be able to mandate overtime where issues of patient safety are identified by facility leadership. We note VAMCs currently have policies preventing RNs from working more than 12 consecutive hours and 60 hours in a 7 day period pursuant to section 4(b) of PL 108-445.
Subsection 3(b) would amend 38 U.S.C. 7456 (the "Baylor Plan"), which authorizes VA to allow nurses who perform two 12-hour regularly scheduled tours of duty on a weekend to be paid for 40 hours. This work-scheduling practice typically would be used when facilities encounter significant staffing difficulties caused by similar work scheduling practices in the local community. Currently, VA has no nurses working on the Baylor Plan. The proposed revision would substitute scheduled "periods of service" for "regularly scheduled 12-hour tour of duty." The purpose and effect of this amendment are unclear. VA would oppose a revision of this authority if it were to mandate that all work on 12 hour regular weekend tours of duty automatically be considered Baylor Plan tours such that it would mandate that any nurse who works two 12-hour shifts on a weekend in addition to their regular tour of duty to get paid for 40 hours, in addition to premium pay for the extra work, such as overtime; and to mandate that nurses are not on the Baylor Plan but who routinely work 12-hour shifts under compressed work schedules that fall on weekends are entitled to 40 hours of pay for the 24 hours worked on the weekend in addition to pay for the remaining 16 hours.
Subsection 3(b)(2)(A), in eliminating the requirement that service be on a "tour of duty" appears to make the Baylor 1,248 hourly rate divisor apply to all service on the weekend instead of just non-overtime hours. It is not appropriate for non-Baylor weekend work hours, and VA opposes this provision.
Subsection 3(b)(3) would delete section 7456(c), the current Baylor Plan requirement, which provides for a 5-hour leave charge for each 3 hours of absence that reflects the relative value of the truncated Baylor tour, in effect increasing the value of leave for affected employees. VA opposes this provision as providing an unwarranted windfall.
Subsection 3(c) would amend section 7456A to change the 36/40 alternate work schedule to a 72/80 alternate work schedule, so that under the schedule six 12-hour "periods of service" anytime in a pay period would substitute for three "12-hour tours of duty" in each week of the pay period. Similar changes would be made to section 7456A's overtime, premium pay and leave provisions.
VA is experiencing planning problems with the use of the current 36/40 schedule. That problem stems from the 36/40 language requiring three 12-hour tours in a work week and because VA defines "work week" as Sunday - Saturday. Changing ''work week" to "pay period" only makes the problem occur every 2 weeks instead of every week, so we do not view that as helpful. We do support changing the 36/40 alternate work schedule to a 72/80 alternate work schedule, so that the six 12-hour tours can occur anytime in a pay period, providing more work scheduling/planning flexibility. VA will soon undertake a pilot in which all hours worked on tours of duty that begin in a work week (even if they end in the following work week) will be considered part of the work week for the purpose of the 36/40 alternate work schedule. We think this may help resolve the problem.
Section 4 would make amendments to VA's Education Assistance Programs. VA supports these proposals.
Subsection 4(a) would amend section 7618 to reinstate the Health Professionals Educational Assistance Scholarship Program through the end of 2013. This program expired in 1998. The Health Professional Scholarship Program would help reduce the nursing shortage in VA by obligating scholarship recipients to work for 2 years at a VA healthcare facility after graduation and licensure.
This proposal would also expand eligibility for the scholarship program to all hybrid occupations. This would be helpful in recruiting and retaining employees in the several hard-to-fill hybrid occupations. We estimate the cost of this provision to be $725,000 in FY 2010 with a five-year total of $21 ,380,000.
Subsection 4(b) would make certain amendments to the Education Debt Reduction Program. It would amend section 7681 (a)(2) to add retention as a purpose of the program and amend section 7682(a)(1) to make it available to "an" employee, in lieu of "recently appointed." It would also increase the authorized statutory amounts in section 7683 to $60,000 and $12,000, respectively.
The "recently appointed" requirement limits eligibility to employees who have been appointed within six months. VA's experience has been that this is not a sufficient period. In several instances, employees applying just missed the six month deadline. In many cases it takes more than six months for employees to become aware of this very helpful recruitment and retention program. VA also supports the increased amounts in light of increased education costs since the program was enacted. We estimate the cost of this provision to be $5,400,000 for FY 2010 and $77,352,000 over a 10-year period.
Subsection 4(c) would authorize VA researchers from "disadvantaged backgrounds" to use authorities in the Public Health Service Loan Repayment Program. This program presently is not available to federal employees other than those working for the National Institutes of Health (NIH). Clinicians with medical specialization and research interests who might otherwise consider career clinical care or clinical research opportunities with VHA are therefore less likely to do so because VA employees are not eligible for the LRP program. These same research-focused, entry-level professionals have historically been the highest caliber and most sought-after candidates. VA researchers should be able to participate in this much sought-after program. VHA's Education Debt Reduction Program (EDRP) is only available for employees hired for permanent title 38 positions. Those in time-limited clinical research training positions such as the Research Career Development Awards (which historically have served as entryways to VA careers in clinical care and research) are not eligible. There are no costs associated with this proposal; it would not increase the funding of this program, but simply authorize VA researchers to participate in it.
Mr. Chairman, this concludes my prepared statement. I will be happy to answer any questions that you and the members of the subcommittee might have.
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Reviewed/Updated Date: November 10, 2009