VA Testimony of Gerald M. Cross before Congress on March 25, 2010

United States Department of Veterans Affairs

HOUSE COMMITTEE ON VETERANS’ AFFAIRS
SUBCOMMITTEE ON HEALTH
MARCH 25, 2010
STATEMENT OF GERALD M. CROSS, M.D., FAAFP
DEPUTY CHIEF FOR PATIENT CARE SERVICES AND CHIEF CONSULTANT FOR PRIMARY CARE,
VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS

March 25, 2010

Good Morning Mr. Chairman and Members of the Subcommittee:

Thank you for inviting me here today to present the Administration’s views on several bills that would affect Department of Veterans Affairs (VA) benefits programs and services. Joining me today are Walter A. Hall, Assistant General Counsel; Brian McVeigh, Chief Consultant, Human Resources Management; and Patricia Vandenberg, Assistant Deputy Under Secretary for Health for Policy and Planning. Unfortunately, we do not yet have views and costs for H.R. 84, H.R. 1075 and a draft bill regarding performance pay and collective bargaining. We will forward them as soon as they are available.

H.R. 949?Repeal of 38 U.S.C. § 7422 Collective Bargaining Exclusions; Adverse Action Decisions and Appeals; Disciplinary Appeals Board Transcripts

When Congress first authorized VA clinicians to engage in collective bargaining in 1991 it did so acknowledging that clinical decisions and clinical management decisions should not be decided through the collective bargaining process. Congress provided that only the Secretary, and by delegation the Under Secretary for Health may decide when one of the statutory bargaining exclusions in section 7422 applies. However they did provide that, if a party believes that the Under Secretary for Health has acted arbitrarily or capriciously in issuing a 7422 decision, the party may seek judicial review of the decision pursuant to section 7422(e).

The key provision of H.R. 949 would make matters relating to direct patient care and the clinical competence of clinical health care providers subject to collective bargaining. It would repeal the current restriction on collective bargaining, arbitrations, and grievances over matters that the Secretary determines to concern or arise out of the professional conduct or competence, peer review, or compensation of Title 38 employees. In addition, the bill would impose a very tight time limit on the issuance of final agency decisions on employee grievances and would make such decisions subject to judicial review. Finally, the bill would require VA to provide employees who appeal adverse actions under section 7462 with a full and correct copy of the Disciplinary Appeals Board transcript at least 21 days before post-hearing briefs are submitted, despite the existence of a 120-day deadline for the issuance of Disciplinary Appeals Board decisions.

We appreciate the many positive contributions collective bargaining and labor-management partnership make to VA’s mission. H.R. 949 would have an adverse impact on VA’s ability to deliver quality patient care. Consistent with our views on a similar Senate bill, we strongly oppose it. Section 1 of H.R. 949, if enacted, would imperil VA’s ability to furnish timely and quality care for Veterans. H.R. 949 would open VA’s responsibility under Title 38 to 1) make direct patient care and clinical competency decisions, 2) assess Title 38 professionals’ clinical skills, and 3) determine discretionary compensation for Title 38 professionals, to review other non-clinical third parties who lack the clinical training and health care expertise to make such determinations.

In September 2009, following extensive discussions with the American Federation of Government Employees (AFGE) regarding friction over differences of interpretation over collective bargaining authorities, VA and its labor partners signed a charter for a 38 U.S.C. 7422 Workgroup, with the purpose of formulating recommendations for the Secretary to improve knowledge, understanding, and consistent use of the authorities and limitations in section 7422. The Workgroup consists of representatives from VA’s five national unions (AFGE, National Federation of Federal Employees, National Association of Government Employees, Service Employees International Union, and United American Nurses). VA’s team is headed by the Assistant Secretary for Human Resources and Administration, Mr. John Sepulveda, and includes subject matter experts from the Veterans Health Administration, Office of General Counsel, and Office of Labor Management Relations. The Workgroup charter charged its members with: (1) establishing a dialogue about the meaning of the 7422 bargaining and grievance exclusions; (2) making recommendations to the Secretary regarding consistent use of section 7422; (3) developing joint training about the section 7422 exclusions and decision process; (4) identifying strategies for enhancing collaborative efforts to resolve disputes at all levels; (5) recommending approaches for capturing data reflecting informal and formal efforts to resolve section 7422 disputes; and, (6) developing a strategic communication plan for the results of the Workgroup. Over the past 6 months, the 7422 Workgroup has held a series of multi-day face-to-face sessions, conducted in a partnership manner, where the parties engaged in a productive dialogue. We are hopeful this process, when concluded, will result in actions and understandings that will address many of the unions’ concerns about the manner in which section 7422 exclusions are applied.

H.R. 949 would create a number of significant problems that would impede VA’s ability to operate a safe, effective and responsive healthcare system. The rules for collective bargaining often lead to protracted negotiations and third-party proceedings. On average, it takes 120 days to negotiate national Memorandums of Understanding (MOU) with VA’s largest union, the AFGE. The 120-day average does not include local level bargaining over facility-specific aspects of a change, which can add another 30-60 days. While this kind of timeline may be acceptable for most workplace matters, it is not when it comes to patient-care matters. If H.R. 949 is enacted, critical changes in patient care, safety procedures, and policies could not be implemented until national and local bargaining had been completed. This could result in less than optimal care for Veterans. Such delays, and the very practice of negotiating clinical matters, are inconsistent with patient-centered medicine.

H.R. 949 would allow Title 38 professionals to grieve matters or file unfair labor practice charges on clinical matters currently exempted from collective bargaining. Grievances not resolved at the informal stage are decided by a third-party arbitrator and may be subsequently appealed to the Federal Labor Relations Authority. Labor grievance arbitrators, the Federal Labor Relations Authority, and the Federal Service Impasses Panel would have considerable discretion to impose a clinical or patient care resolution on the parties. VA would have limited, if any, recourse if such an external party erred in its consideration of a clinical or patient care issue; VA would be bound by that third-party’s decision. VA opposes this change in the strongest possible terms - clinicians must be able to make the clinical decisions to ensure care is furnished in compliance with VA and prevailing medical practice standards. Actions concerning direct patient care and the clinical competence of VA providers must be made and reviewed by clinicians, not arbitrators.

Moreover, non-clinical third-parties are not accountable for ensuring the health and safety of the Veterans receiving their care through the Department. If the Secretary and the Under Secretary for Health are going to be held responsible and accountable for the quality of care provided to Veterans, they must be able to make decisions relating to patient care and the clinical competence of VA providers. Decisions must be based on what is best for our Veterans from a medical perspective rather than what is the best that can be negotiated through collective bargaining, or on what a non-clinical arbitrator or the Federal Labor Relations Authority decides is appropriate in the context of collective bargaining. Our Veteran patients cannot be expected to understand why their VA providers—a group of highly qualified, trained, and trusted professionals—have no option but to follow the decisions of third-parties with whom they disagree on matters affecting patient care.

This provision would also require collective bargaining related to VA’s Peer Review process by which VA assess the clinical skills of Title 38 health care professionals and assesses whether our patients are receiving the high-standard of care they deserve. Matters relating to peer review are now expressly exempted from collective bargaining under section 7422. H.R. 949 would change that, again subjecting the process of assessing the clinical skills of Title 38 professionals and determining whether they are clinically competent in their area of practice to review by non-VA, non-clinical third-parties.

In addition to clinical-care issues, H.R. 949 would permit unions to bargain over, grieve, and arbitrate subjects that are even exempted from collective bargaining under Title 5, including the determination of the amount of an employee’s compensation. Permitting Title 38 staff to negotiate the discretionary aspects of their compensation would be at complete odds with a basic premise of federal labor management relations.

Section 2 of the bill would establish a new section 7463(f)(1), which would require VA to decide grievance appeals no later than 60 days after a grievance is filed and would subject such decisions to judicial review. VA opposes Section 2 of H.R. 949. In many cases, because of the complexity of the issues, the need to develop and review evidence, or secure the availability of witnesses, a grievance examiner's review can take most or all of those 60 days, leaving no time for a VA higher level official to review, and decide upon, the grievance examiner's findings and recommendations as called for in section 7463(d)(3). Sixty days is not sufficient for this process.

Finally, section 3 of the bill would amend the Disciplinary Appeals Board or DAB statute in section 7462 to require the provision of a full and correct copy of a DAB transcript to an employee at least 21 days before the submission of post-hearing briefs. DABs are conducted when a Title 38 employee appeals a major adverse action arising out of a question of professional conduct or competence. VA opposes Section 3 of H.R. 949 because it would unnecessarily constrain the time available to DABs to make their decisions, which by law must be rendered within 45 days of the DAB hearing and no later than 120 days after commencement of the appeal. There may be instances where it will be impossible to provide the transcript to an employee within 21 days and meet the 120-day statutory time limit because of the timing of the oral hearing or the length of time it takes to prepare a full and complete transcript. Cases can involve complex clinical issues and extensive medical and expert testimony and evidence. Moreover, post-hearing briefs are neither necessary for nor required by many DABs because the issues are sufficiently fleshed out in the DAB’s oral hearing, the written notices provided to the employee, and the employee’s written reply, oral reply, and DAB appeal.

In sum, VA’s ability to manage its health care facilities and to monitor the professional conduct and competence of its employees must be reserved for the VA professionals and clinicians who are responsible for delivering quality patient care. Current law provides the appropriate balance between rightful subjects for collective bargaining and clinical need, and, as noted above, VA and its unions are engaged in a productive dialogue to resolve issues of interpretation of the contours of how 7422 is applied.

H.R. 2698?“Veterans and Survivors Behavioral Health Awareness Act”

VA does not support section 2 of H.R. 2698 which would direct VA to provide scholarships to individuals pursuing education or training in behavioral health care specialties in order to recruit and retain individuals for service in Vet Centers. In exchange for the scholarship, an individual would be required to fulfill a service obligation with VA. The total amount available for scholarships could not exceed $2,000,000 in any fiscal year.

VA appreciates the concept of using scholarships to enhance succession planning. However, this section is unnecessary. Under existing authority, VA can establish a special scholarship program to identify, educate and hire individuals for difficult-to-recruit and difficult-to-retain health care positions including individuals pursuing degrees in mental health specialties. Additionally, implementation of section 2 of H.R. 2698 would result in substantial costs to VA over a long period of time with little short-term benefits. It takes 2 to 7 years of education to qualify to become a VA behavioral health specialist. Congress has authorized and VA has taken other actions to promote recruitment and retention of qualified health professionals, including the Education Debt Reduction Program and the Employee Incentive Referral Initiative. VA takes this opportunity to again endorse reauthorization of the Health Professional Educational Assistance Scholarship Program. This program would be a more effective and broader program to support recruitment and retention efforts in a variety of career fields, including mental health counselors.

VA has not had difficulties hiring new counselors, and in the past 3 years, VA has hired more than 5,800 additional mental health workers. VA has also expanded funding for mental health training by supporting the expansion of training positions in psychology by 206 positions. Seventy percent of current VA psychologists participated in a VA training program, demonstrating that these initiatives are an exceptional resource for addressing future recruitment needs. The legislation also appears to duplicate provisions from the Montgomery GI Bill and the Post-9/11 GI Bill, which already provide mechanisms for funding graduate and post-graduate degree programs for eligible Veterans