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104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    104-226
_______________________________________________________________________
 
    EXEMPTION OF CERTAIN FULL-TIME HEALTH CARE PROFESSIONALS OF THE 
DEPARTMENT OF VETERANS AFFAIRS FROM RESTRICTIONS ON REMUNERATED OUTSIDE 
                        PROFESSIONAL ACTIVITIES

_______________________________________________________________________


 August 2, 1995.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______


          Mr. Stump, from the Committee on Veterans' Affairs,

                        submitted the following

                              R E P O R T

                        [To accompany H.R. 1384]

      [Including cost estimate of the Congressional Budget Office]
  The Committee on Veterans' Affairs, to whom was referred the 
bill (H.R. 1384) to amend title 38, United States Code, to 
exempt certain full-time health care professionals of the 
Department of Veterans Affairs from restrictions on remunerated 
outside professional activities, having considered the same, 
reports favorably thereon with amendments and recommends that 
the bill as amended do pass.

  The amendments (stated in terms of the page and line numbers 
of the introduced bill) are as follows:

  Page 1, line 5, insert ``(a) Exemption of Certain Health-Care 
Professionals From Restrictions on Remunerated Outside 
Professional Activities.--'' before ``Section''.

  Page 2, after line 22, insert the following:

  (b) Cross Reference Amendments.--Subsection (d) of such 
section, as redesignated by subsection (a)(2), is amended--
          (1) in the matter preceding paragraph (1), by 
        striking out ``subsection (b)(6)'' and inserting in 
        lieu thereof ``subsection (b)(5)''; and
          (2) in paragraph (2), by striking out ``paragraph 
        (1)(B)'' and inserting in lieu thereof ``section 
        7421(b) of this title''.
                              Introduction

    The Subcommittee met on May 11, 1995 and recommended H.R. 
1384 to the full Committee. The full Committee met on June 15, 
1995 and ordered H.R. 1384 reported favorably to the House by 
unanimous voice vote.

                      Summary of the Reported Bill

    H.R. 1384 would:
    1. Amend section 7423 of title 38, United States Code, to 
exempt registered professional nurses, physician assistants, 
and expanded-duty dental auxiliaries from restrictions 
regarding outside professional activities for remuneration.
    2. Continue the limitation on outside remuneration for 
full-time title 38 health professionals such as physicians and 
dentists except under circumstances to assist medically under-
served communities or to meet medical needs which would not 
otherwise be available to communities or medical practice 
groups. Waivers of periods up to 180 days may be granted by the 
Under Secretary for Health.

                       Background and Discussion

    In creating VA's Department of Medicine and Surgery in 
1946, Congress established a personnel system under title 38 of 
the United States Code for VA doctors, nurses, and dentists. 
That personnel system, administered independently of the civil 
service system, was intended to give VA exclusive control to 
manage and operate its health care facilities. As part of that 
statutory framework, Congress also established restrictions on 
outside professional activities of those ``title 38'' health 
care employees.
    Those ``moonlighting'' restrictions were instituted to 
ensure round-the-clock patient care coverage, and were a 
response to a ``clock-punching'' work ethic often at odds with 
actual patient care needs.
    Much has changed in the VA health care system since the 
establishment of restrictions on outside professional 
activities. The role and working conditions of VA nurses, for 
example, has changed markedly since 1946. In those years, 
nurses often lived on station and were expected to be available 
to meet patient care needs. Since that time the nursing 
profession has undergone a major transformation from one of 
physician handmaiden to independent practitioner with physician 
collaboration. The change in professional status for nurses has 
also impacted the work schedule for nurses and removed the 
expectation of 24-hour availability. Most nurses today work a 
prescribed schedule of hours, as do physician assistants and 
expanded-duty dental auxiliaries.
    Secondary employment, or ``moonlighting,'' becomes a 
problem when it interferes with staffing needs. The problem is 
most acute in connection with full-time VA physicians, who must 
be on-call 24 hours a day, 7 days a week, to meet patient care 
needs. However, registered nurses, physician assistants, and 
expanded-duty dental auxiliaries to whom the ``moonlighting'' 
restrictions, as well as other aspects of the title 38 
personnel system apply, do not have the same on-call demands as 
physicians.
    VA has other effective means to assure nursing coverage and 
``moonlighting'' restrictions are, for all practical proposes, 
irrelevant to maintaining that goal. The staffing needs that 
prompted a comprehensive ``moonlighting'' ban in law have long 
since changed. In the early 1970's, for example, basic annual 
salary for a registered nurse, which had previously been based 
on availability for duty 24 hours per day, 7 days per week, was 
changed to provide for compensation at an hourly rate with 
increased salary accruing for non-standard schedules worked.
    Not only have the ``moonlighting'' restrictions diminished 
in utility, they have also created problems of enforcement and 
unwelcome adverse effects on recruitment and retention in 
certain professions. For example, during the 1980's, 
flexibility and economic considerations played a major part in 
the decision of many full-time VA nurses to shift to part-time 
schedules to escape the ban.
    Given the need for many families to find new sources of 
income under current economic conditions, a comprehensive ban 
on outside employment appears unnecessarily sweeping and 
counterproductive to recruitment and retention. It is for these 
reasons that the Department and professional organizations 
representing these groups strongly supported efforts to remove 
the ban for registered professional nurses, physician 
assistants, and expanded-duty dental auxiliaries.
    Lifting the ban on outside employment for selected 
professions could have real benefits for VA. The Department 
could reap benefits such as increased staff creativity by 
exposure to a variety of employment environments. It could also 
serve as a vehicle to improve professional skills through 
practice in private sector clinical areas that exceed or are 
different from those available in the VA. The Department has 
stated no objection to the bill.
    Understanding the economic concerns of those groups 
affected by H.R. 1384 and supportive of their position as 
independent practitioners, the Chairman of the Subcommittee on 
Hospitals and Health Care was joined in a bipartisan effort 
with the Ranking Member of the Subcommittee to introduce this 
bill. Efforts to align VA employment practices to those of the 
private sector for registered professional nurses, physician 
assistants, and expanded-duty dental auxiliaries should greatly 
assist recruitment and retention efforts by procuring quality 
health care providers for VA facilities.

                           Oversight Findings

    No oversight findings have been submitted to the Committee 
by the Committee on Government Reform and Oversight.

               Congressional Budget Office Cost Estimate

    The following letter was received from the Congressional 
Budget Office concerning the cost of the reported bill:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 20, 1995.
Hon. Bob Stump,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 1384, a bill to amend title 38, United States 
Code, to exempt certain full-time health care professionals of 
the Department of Veterans Affairs from restrictions on 
remunerated outside activities as ordered reported by the House 
Committee on Veterans' Affairs on June 15, 1995.
    The bill would have no significant impact on the budgets of 
federal, state, or local governments. H.R. 1384 would not be 
subject to pay-as-you-go procedures under section 252 of the 
Balanced Budget and Emergency Deficit Control Act.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                           June E. O'Neill,
                                                          Director.

                     Inflationary Impact Statement

    The enactment of the reported bill would have no 
inflationary impact.
         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italics, existing law in which no change is proposed 
is shown in roman):

              SECTION 7423 OF TITLE 38, UNITED STATES CODE

Sec. 7423. Personnel administration: full-time employees

  (a) * * *
  (b) A person covered by subsection (a) may not do any of the 
following:
          [(1) Assume responsibility for the medical care of 
        any patient other than a patient admitted for treatment 
        at a Department facility, except in those cases where 
        the person, upon request and with the approval of the 
        Under Secretary for Health, assumes such 
        responsibilities to assist communities or medical 
        practice groups to meet medical needs which would not 
        otherwise be available for a period not to exceed 180 
        calendar days, which may be extended by the Under 
        Secretary for Health for additional periods not to 
        exceed 180 calendar days each.]
          [(2)] (1) Teach or provide consultative services at 
        any affiliated institution if such teaching or 
        consultation will, because of its nature or duration, 
        conflict with such person's responsibilities under this 
        title.
          [(3)] (2) Accept payment under any insurance or 
        assistance program established under title XVIII or XIX 
        of the Social Security Act or under chapter 55 of title 
        10 for professional services rendered by such person 
        while carrying out such person's responsibilities under 
        this title.
          [(4)] (3) Accept from any source, with respect to any 
        travel performed by such person in the course of 
        carrying out such person's responsibilities under this 
        title, any payment or per diem for such travel, other 
        than as provided for in section 4111 of title 5.
          [(5)] (4) Request or permit any individual or 
        organization to pay, on such person's behalf for 
        insurance insuring such person against malpractice 
        claims arising in the course of carrying out such 
        person's responsibilities under this title or for such 
        person's dues or similar fees for membership in medical 
        or dental societies or related professional 
        associations, except where such payments constitute a 
        part of such person's remuneration for the performance 
        of professional responsibilities permitted under this 
        section, other than those carried out under this title.
          [(6)] (5) Perform, in the course of carrying out such 
        person's responsibilities under this title, 
        professional services for the purpose of generating 
        money for any fund or account which is maintained by an 
        affiliated institution for the benefit of such 
        institution, or for such person's personal benefit, or 
        both.
  (c)(1) An employee of the Veterans Health Administration who 
is covered by subsection (a) (other than a registered nurse, a 
physician's assistant, or an expanded-duty dental auxiliary) 
may not assume responsibility for the medical care of any 
patient other than a patient admitted for treatment at a 
Department facility.
  (2) The limitation in paragraph (1) shall not apply in a case 
in which the employee, upon request and with the approval of 
the Under Secretary for Health, assumes such responsibilities 
to assist communities or medical practice groups to meet 
medical needs which would not otherwise be available. The 
approval of the Under Secretary may not be for a period in 
excess of 180 days, which may be extended by the Under 
Secretary for additional periods of not to exceed 180 days.
  [(c)] (d) In the case of any fund or account described in 
[subsection (b)(6)] subsection (b)(5) that was established 
before September 1, 1973--
          (1) the affiliated institution shall submit 
        semiannually an accounting to the Secretary and to the 
        Comptroller General of the United States with respect 
        to such fund or account and shall maintain such fund or 
        account subject to full public disclosure and audit by 
        the Secretary and the Comptroller General for a period 
        of three years or for such longer period as the 
        Secretary shall prescribe, and
          (2) no person in a position specified in [paragraph 
        (1)(B)] section 7421(b) of this title may receive any 
        cash from amounts deposited in such fund or account 
        derived from services performed before that date.
  [(d)] (e) As used in this section:
          (1) The term ``affiliated institution'' means a 
        medical school or other institution of higher learning 
        with which the Secretary has a contract or agreement as 
        referred to in section 7313 of this title for the 
        training or education of health personnel.
          (2) The term ``remuneration'' means the receipt of 
        any amount of monetary benefit from any non-Department 
        source in payment for carrying out any professional 
        responsibilities.
  [(e)] (f)(1) The Secretary shall establish a leave transfer 
program for the benefit of health-care professionals in 
positions listed in section 7401(1) of this title. The 
Secretary may also establish a leave bank program for the 
benefit of such health-care professionals.
  (2) To the maximum extent feasible--
          (A) the leave transfer program shall provide the same 
        or similar requirements and conditions as are provided 
        for the program established by the Director of the 
        Office of Personnel Management under subchapter III of 
        chapter 63 of title 5; and
          (B) any leave bank program established pursuant to 
        paragraph (1) shall be consistent with the requirements 
        and conditions provided for agency leave bank programs 
        in subchapter IV of such chapter.
  (3) Participation by a health-care professional in the leave 
transfer program established pursuant to paragraph (1), and in 
any leave bank program established pursuant to such paragraph, 
shall be voluntary. The Secretary may not require any health-
care professional to participate in such a program.
  (4)(A) The Secretary and the Director of the Office of 
Personnel Management may enter into an agreement that permits 
health-care professionals referred to in paragraph (1) to 
participate in the leave transfer program established by the 
Director of the Office of Personnel Management under subchapter 
III of chapter 63 of title 5 or in any leave bank program 
established for other employees of the Department pursuant to 
subchapter IV of chapter 63 of title 5, or both.
  (B) Participation of such health-care professionals in a 
leave transfer program or a leave bank program pursuant to an 
agreement entered into under subparagraph (A) shall be subject 
to such requirements and conditions as may be prescribed in 
such agreement.
  (5) The Secretary is not required to establish a leave 
transfer program for any personnel permitted to participate in 
a leave transfer program pursuant to an agreement referred to 
in paragraph (4).
  [(f)] (g) The Secretary may purchase promotional items of 
nominal value for use in the recruitment of individuals for 
employment under this chapter. The Secretary shall prescribe 
guidelines for the administration of the preceding sentence.
                                   -