June 25, 2018

June 25, 2018

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June 22, 2018

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The VA MISSION Act: Enhancing Healthcare for Veterans

On Wednesday, June 6, 2018, President Trump signed into law the “John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Networks Act” a.k.a. the VA MISSION Act of 2018 (“VAMA”), a $52 billion reform bill aimed at improving access to, and the quality of, medical services provided to veterans by the Department of Veterans Affairs (“VA”).

Increase Veteran Access to High-Quality Healthcare Services

In brief, VAMA has two essential components. First, it extends comprehensive caregiver benefits to veterans injured or made ill prior to Sept. 11, 2001. As described by Washington Headquarters Executive Director, Garry Augustine, VAMA takes major strides to bring equality into the VA’s coverage of family caregiver services for both veterans insured before 9/11 and veterans injured on or after 9/11.

Second, VAMA directs the VA to combine a number of existing private-care programs, including the “Veterans Choice Program,” to improve veterans’ access to healthcare services and to improve the quality of such services. More specifically, VAMA’s quality and access provisions:

  1. Allow coverage of medical services provided to veterans by private community-based physicians as long as a VA physician believes that the receipt of services from a private community-based physician is in the veteran’s best interest;
  2. Make community care programs more efficient and accessible to veterans by expanding the VA healthcare provider network; and
  3. Provide one (1) year of bridge funding ($5.2 billion) for the existing VA Choice Program to ensure that current private-sector medical appointments for veterans are not interrupted while VAMA requirements are implemented – a process which is anticipated to take about one (1) year.

Telehealth

In past Healthcare Blog posts, we have reviewed and commented on telehealth-related initiatives and the efforts being made at the federal and state levels to expand the range of healthcare services that can be provided via telehealth technology and the availability of telehealth services for Medicare, Medicaid, and other patients.1 In furtherance of its goal to expand veteran access to high quality and coordinated healthcare services, VAMA includes various telehealth-related provisions.

First, VAMA retracts the VA’s jurisdictional constraints on telemedicine by allowing VA healthcare professionals to practice telemedicine regardless of the location of the provider or patient during the treatment. Historically, in order for the service to be paid for by the VA, VA physicians practicing telemedicine were required to be located and licensed in the same state as their patient, and the service had to be offered in a federal facility. Under VAMA, however, VA professionals providing services to veterans are now able to offer telehealth services irrespective of professional’s or veteran’s location as long as the VA professional possesses one valid state medical license.

Second, VA health professionals providing healthcare services through telehealth will need to adhere to the same quality and efficiency standards across the country. To ensure quality and efficiency benchmarks are met, the VA will be required to submit a report to congress within one (1) year of the enactment of VAMA outlining, among other things, provider and patient satisfaction and statistics relating to the impact of telemedicine on patient wait times.

Finally, VAMA also provides for changes in the way health data will be transmitted and shared between VA healthcare providers and community-based providers. Specifically, community-based providers will have full access to relevant VA records for their patient, the purpose of which is to enhance the level of continuity of care among VA and community-based providers. For example, VA and community-based providers will each have access to the prescription records of their patients in an effort to reduce addiction and over-prescribing.

The Pros and the Cons 

The Pros. Proponents of VAMA believe that it provides much needed reform to a failed system and would relieve many of the issues veterans currently face when trying to receive healthcare services including inadequate access to specialized care in remote and rural areas, and a lack of continuity of care and quality among providers. VAMA is also praised for providing veterans options so that they are not subject to notoriously long wait times at VA facilities.

Additionally, proponents say that the increase in funding will also improve the talent-pool available to the VA. VAMA encourages job applicants by requiring that the VA be more public about job postings, and establishing a scholarship program for VA doctors.

The Cons. Opponents to VAMA are concerned that the privatization of health services for veterans will lead to a decrease in the resources available to VA facilities and ultimately result in higher out-of-pocket costs for veterans.

For example, there is an ongoing concern amongst VAMA opponents that privatization will deter veterans from visiting VA facilities even though VA facilities have more experience dealing with the common medical issues that veterans face. More broadly, in a May 16, 2018 Press Release issued by Democratic Congresswoman Dina Titus (NV-01), Congresswoman Titus states, as many VAMA opponents have argued, that the VAMA “threatens successful (VA) programs, could lead to budget cuts for VA services, and puts the VA on a path to privatization that hurts our veterans and their families.”

As for the budgetary concerns voiced by Congresswoman Titus in the above referenced Press Release, many VAMA opponents are worried that the privatization of VAMA services could threaten the existence of veteran healthcare programs. The argument voiced in support of this concern is that if a significant amount of veterans choose private sector healthcare services rather than receiving care at VA facilities, federal dollars that would otherwise go toward VA facilities would go to private entities. If veteran participation at VA facilities were to diminish as a result of veterans using private healthcare providers instead of VA healthcare providers, VAMA could lead to budget cuts that would ultimately harm the VA’s other successful non-healthcare related programs such as job training, homelessness, and VA research.

Funding

Although President Trump touted the expansion of veterans healthcare when signing VAMA into law on June 6, 2018, the President is currently fighting a bipartisan plan to fund the much-touted expansion– an expansion that is said to cost $50 billion of additional VA spending.

As described by Erica Werner and Lisa Rein in a Washington Post article, “Trump signs veterans health bill as White House works against bipartisan plan to fund it,” dated June 6, 2018, two Senate Republicans heading powerful Senate committees and their Democratic counterparts want to pay for the $50 billion VAMA by lifting existing spending caps within a large funding bill – “Fiscal Year 2019 Transportation, Housing and Urban Development, and Related Appropriations Act” S. 3023 (115th) (“THUD Appropriations Act”).   The charge on the THUD Appropriations Act is being led by Senators Richard Shelby (R-Ala.) (Chairman of the Senate Appropriations Committee), Patrick Leahy (D-Vt.) (Ranking Democrat, Senate Appropriations Committee), Johnny Isakson (R-Ga.) (Chairman of the Senate Veterans’ Affairs Committee) and Jon Tester (D-Mont.) (Ranking Democrat, Senate Veterans’ Affairs Committee).

According to supporters of the THUD Appropriations Act, the appropriation and increased spending caps would shield other veterans’ benefits from being cut to pay for VAMA – VAMA expenses largely coming from the funding of claims submitted to the VA by private healthcare providers. Id. As described by Senator Shelby in an interview with The Washington Post, “If we don’t get on [the $50 billion appropriation in the THUD Appropriations Act] we’re going to have a hole of $10 billion in our [appropriations].” “Trump signs veterans health bill as White House works against bipartisan plan to fund it,” The Washington Post, by Erica Werner and Lisa Rein (June 6, 2018).

Some have conjectured that the Trump Administration’s unwillingness to consider new spending in support of VAMA is, in part, related to the significant criticism the President received from members of his own party for the $1.3 trillion government-wide spending bill that was signed into law in March, 2018. Id. The THUD Appropriations Act may find its way to the Senate floor as early as this week. We will be following the Act and will provide updates as the legislative process proceeds.


[1] Telehealth/telemedicine blog articles include: More Telemedicine Food for Thought: Exception Five to the Haight Act’s In-Person Examination Requirement by Kenneth Yood, Esq. and Erica Kraus, Esq.; Texas Telemedicine Saga Finally Over? The Texas Medical Board Substantially Revises Telemedicine Regulations by Kristi Kung, Esq. (December 11, 2017); and Life in the Slow Lane? What the Net Neutrality Repeal May Mean for Telehealth Services by Kristi Kung, Esq. (January 25, 2018), etc.

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Kenneth Yood Healthcare Attorney SheppardMullin
Partner

Ken is a partner in the Corporate practice group in the firm's Los Angeles office. Chambers USAranks him highly for Healthcare, where he was commended for his "broad-based ability in the regulatory area." Clients appreciate that "his explanations are clear, and he understands the business side of things," notes Chambers 2016.

Areas of Practice

Ken represents a wide range of healthcare providers and healthcare companies, including specialty and general acute hospitals (including local district, nonprofit and...

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Matthew Shatzkes Attorney New York Sheppard Mullin
Associate

Matthew Shatzkes is an associate in the Corporate Practice Group in the New York office of Sheppard Mullin and is a member of the firm’s healthcare practice team.

Matthew Shatzkes advises healthcare entities and not-for-profit corporations on a wide range of business, regulatory and transactional matters. Mr. Shatzkes advises clients on issues relating to entity formation, governance, corporate transactions (mergers, asset sales, dissolutions), and compliance with various federal and state laws, including regulatory compliance matters. Mr. Shatzkes's clients include hospitals, academic medical centers, management companies, physician practices, and other healthcare entities and not-for-profit corporations in the healthcare industry. 

Prior to entering into private practice, Mr. Shatzkes worked as a judicial fellow for the Honorable Roger N. Rosengarten at the New York Supreme Court, Queens County.  By beginning his career as a litigator, Mr. Shatzkes also has experience in representing clients in business and commercial disputes involving, among others, fiduciary obligations and breach of contract claims.

Education

  • St. John's University School of Law, 2011, cum laude, Associate Managing Editor, Journal of Civil Rights and Economic Development
  • Brooklyn College, 2008, magna cum laude
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Kimberly Rai Lawyer Sheppard Mullin NYC
Attorney

Kimberly Rai is an attorney in the Corporate Practice Group in the firm's New York office.

As a member of the firms Due Diligence Team, Ms. Rai supports the Corporate and Finance & Bankruptcy Practice Groups on various matters relating to mergers and acquisitions, venture capital and private equity.

Prior to joining the firm, Ms. Rai worked in house as Assistant General Counsel for a retail energy supplier. She has experience in retail energy compliance and general corporate matters

Education

  • J.D., Fordham University School of Law
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