§8111. Sharing of Department and Department of Defense health-care resources

(a) The Secretary and the Secretary of the Army, the Secretary of the Air Force, and the Secretary of the Navy may enter into agreements and contracts for the mutual use or exchange of use of hospital and domiciliary facilities, and such supplies, equipment, material, and other resources as may be needed to operate such facilities properly, except that the Secretary may not enter into an agreement that would result (1) in a permanent reduction in the total number of authorized Department hospital beds and nursing home beds to a level below the minimum number of such beds required by section 8110(a)(1) of this title to be authorized, or (2) in a permanent reduction in the total number of such beds operated and maintained to a level below the minimum number of such beds required by such section to be operated and maintained or in any way subordinate or transfer the operation of the Department to any other agency of the Government.

(b)(1) In order to promote the sharing of health-care resources between the Department and the Department of Defense (hereinafter in this section referred to as the "agencies"), there is established an interagency committee to be known as the Department/Department of Defense Health-Care Resources Sharing Committee (hereinafter in this subsection referred to as the "Committee").

(2) The Committee shall be composed of-

(A) the Under Secretary for Health and such other officers and employees of the Department as the Under Secretary for Health may designate; and

(B) the Assistant Secretary of Defense for Health Affairs (hereinafter in this section referred to as the "Assistant Secretary") and such other officers and employees of the Department of Defense as the Assistant Secretary may designate,

except that the size of the Committee shall be mutually determined by the Under Secretary for Health and the Assistant Secretary. During odd-numbered fiscal years, the Under Secretary for Health shall be the chairman of the Committee. During even-numbered fiscal years, the Assistant Secretary shall be the chairman of the Committee. The agencies shall provide administrative support services for the Committee at a level sufficient for the efficient operation of the Committee and shall share the responsibility for the provision of such services on an equitable basis.

(3) In order to enable the Committee to make recommendations under paragraph (4) of this subsection, the Committee shall on a continuing basis-

(A) review existing policies, procedures, and practices relating to the sharing of health-care resources between the agencies;

(B) identify and assess further opportunities for the sharing of health-care resources between the agencies that would not, in the judgment of the Committee, adversely affect the range of services, the quality of care, or the established priorities for care provided by either agency;

(C) identify changes in policies, procedures, and practices that would, in the judgment of the Committee, promote such sharing of health-care resources between the agencies;

(D) monitor plans of the agencies for the acquisition of additional health-care resources, including the location of new facilities and the acquisition of major equipment, in order to assess the potential impact of such plans on further opportunities for such sharing of health-care resources; and

(E) monitor the implementation of activities designed to promote the sharing of health-care resources between the agencies.

(4) At such times as the Committee considers appropriate, the Committee shall make recommendations to the Secretary or the Secretary of Defense, or both, with respect to (A) changes in policies, procedures, and practices that the Committee has identified under paragraph (3)(C) of this subsection pertaining to the sharing of health-care resources described in such paragraph, and (B) such other matters as the Committee considers appropriate in order to promote such sharing of health-care resources.

(c)(1) After considering the recommendations made under subsection (b)(4) of this section, the Secretary and the Secretary of Defense shall jointly establish guidelines to promote the sharing of health-care resources between the agencies. Guidelines established under this subsection shall provide for such sharing consistent with the health-care responsibilities of the Department under this title and with the health-care responsibilities of the Department of Defense under chapter 55 of title 10 and so as not to adversely affect the range of services, the quality of care, or the established priorities for care provided by either agency.

(2) Guidelines established under paragraph (1) of this subsection shall authorize the heads of individual medical facilities of the agencies to enter into health-care resources sharing agreements in accordance with subsection (d) of this section and shall include guidelines for such agreements.

(d)(1) The head of each medical facility of either agency is authorized to enter into sharing agreements with the heads of medical facilities of the other agency in accordance with guidelines established under subsection (c) of this section. Under any such agreement, an individual who is a primary beneficiary of one agency may be provided health care at a facility of the other agency that is a party to the sharing agreement.

(2) Each such agreement shall identify the health-care resources to be shared.

(3) Each such agreement shall provide, and shall specify procedures designed to ensure, that the availability of direct health care to individuals who are not primary beneficiaries of the providing agency (A) is on a referral basis from the facility of the other agency, and (B) does not (as determined by the head of the facility of the providing agency) adversely affect the range of services, the quality of care, or the established priorities for care provided to the primary beneficiaries of the providing agency.

(4) Each such agreement shall provide that a providing agency shall be reimbursed for the cost of the health-care resources provided under the agreement and that the rate for such reimbursement shall be determined in accordance with the methodology agreed to pursuant to subsection (e) of this section.

(5) Each proposal for an agreement under paragraph (1) of this subsection shall be submitted to the Under Secretary for Health and the Assistant Secretary and shall be effective as an agreement in accordance with its terms (A) on the forty-sixth day after the receipt of such proposal by both such officials, unless earlier disapproved by either such official, or (B) if earlier approved by both such officials, on the date of such approval.

(e) Reimbursement under any sharing agreement entered into under subsection (d) of this section shall be based upon a methodology that is agreed upon by the Under Secretary for Health and the Assistant Secretary and that provides appropriate flexibility to the heads of the facilities concerned to take into account local conditions and needs and the actual costs to the providing agency's facility of the health-care resources provided. Any funds received through such a reimbursement shall be credited to funds that have been allotted to the facility that provided the care or services.

(f) At the time the President's Budget is transmitted to Congress in any year pursuant to section 1105 of title 31, the Secretary and the Secretary of Defense shall submit a joint report to Congress on the implementation of this section during the fiscal year that ended during the previous calendar year. Each such report shall include-

(1) the guidelines prescribed under subsection (c) of this section (and any revision of such guidelines);

(2) the assessment of further opportunities identified under clause (B) of subsection (b)(3) of this section for sharing of health-care resources between the agencies;

(3) any recommendation made under subsection (b)(4) of this section during such fiscal year;

(4) a review of the sharing agreements entered into under subsection (d) of this section and a summary of activities under such agreements during such fiscal year;

(5) a summary of other planning and activities involving either agency in connection with promoting the coordination and sharing of Federal health-care resources during the preceding fiscal year; and

(6) such recommendations for legislation as the Secretary and the Secretary of Defense consider appropriate to facilitate the sharing of health-care resources between the agencies.

(g) For the purposes of this section:

(1) The term "beneficiary" means a person who is a primary beneficiary of the Department or of the Department of Defense.

(2) The term "direct health care" means health care provided to a beneficiary in a medical facility operated by the Department or the Department of Defense.

(3) The term "head of a medical facility" (A) with respect to a medical facility of the Department, means the director of the facility, and (B) with respect to a medical facility of the Department of Defense, means the medical or dental officer in charge or the contract surgeon in charge.

(4) The term "health-care resource" includes hospital care, medical services, and rehabilitative services, as those terms are defined in paragraphs (5), (6), and (8), respectively, of section 1701 of this title, any other health-care service, and any health-care support or administrative resource.

(5) The term "primary beneficiary" (A) with respect to the Department means a person who is eligible under this title (other than under section 1711(b) or 1713 or subsection (d) of this section) or any other provision of law for care or services in Department medical facilities, and (B) with respect to the Department of Defense, means a member or former member of the Armed Forces who is eligible for care under section 1074 of title 10.

(6) The term "providing agency" means the Department, in the case of care or services furnished by a facility of the Department, and the Department of Defense, in the case of care or services furnished by a facility of the Department of Defense.

(Added Pub. L. 96–22, title III, §301(a), June 13, 1979, 93 Stat. 60 , §5011; amended Pub. L. 97–174, §3(a), (b)(1), May 4, 1982, 96 Stat. 70 , 73; Pub. L. 97–452, §2(e)(4), Jan. 12, 1983, 96 Stat. 2479 ; renumbered §8111 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238 , 239; Pub. L. 102–83, §§4(a)(3), (4), (b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105 Stat. 404–406 ; Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984 ; Pub. L. 103–446, title XII, §1201(g)(8), (i)(10), Nov. 2, 1994, 108 Stat. 4687 , 4688.)

Prior Provisions

Provisions similar to those comprising this section were contained in former section 5003 of this title prior to the general revision of this subchapter by Pub. L. 96–22.

Amendments

1994-Subsec. (b)(2). Pub. L. 103–446, §1201(g)(8)(A), in concluding provisions, substituted "During odd-numbered fiscal years" for "During fiscal years 1982 and 1983" and "During even-numbered fiscal years" for "During fiscal year 1984" and struck out after third sentence "Thereafter, the chairmanship of the Committee shall alternate each fiscal year between the Under Secretary for Health and the Assistant Secretary."

Subsec. (b)(4). Pub. L. 103–446, §1201(g)(8)(B), substituted "At such times as" for "Within nine months of the date of the enactment of this subsection and at such times thereafter as".

Subsec. (f)(6). Pub. L. 103–446, §1201(i)(10), inserted "of Defense" after second reference to "Secretary".

1992-Subsecs. (b)(2), (d)(5), (e). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director" wherever appearing.

1991-Pub. L. 102–40, §402(b)(1), renumbered section 5011 of this title as this section.

Pub. L. 102–83, §4(a)(3), (4), substituted "Sharing of Department" for "Sharing of Veterans' Administration" in section catchline.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places.

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" in two places.

Pub. L. 102–40, §402(d)(1), substituted "8110(a)(1)" for "5010(a)(1)".

Subsec. (b). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in par. (4).

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" wherever appearing in pars. (1) and (2)(A).

Subsec. (c)(1). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Subsec. (f). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in introductory provisions and in par. (6).

Subsec. (g). Pub. L. 102–83, §5(c)(1), substituted "1701" for "601" in par. (4) and "1711(b) or 1713" for "611(b) or 613" in par. (5).

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" wherever appearing.

1983-Subsec. (f). Pub. L. 97–452 substituted "section 1105 of title 31" for "section 201(a) of the Budget and Accounting Act, 1921 (31 U.S.C. 11(a))".

1982-Pub. L. 97–174, §3(b)(1), substituted "Sharing of Veterans' Administration and Department of Defense health-care resources" for "Use of Armed Forces facilities" in section catchline.

Subsec. (a). Pub. L. 97–174, §3(a)(1), (2), designated existing provisions as subsec. (a) and substituted "material, and other resources as may be needed to operate such facilities properly, except that the Administrator may not enter into an agreement that would result (1) in a permanent reduction in the total number of authorized Veterans' Administration hospital beds and nursing home beds to a level below the minimum number of such beds required by section 5010(a)(1) of this title to be authorized, or (2) in a permanent reduction in the total number of such beds operated and maintained to a level below the minimum number of such beds required by such section to be operated and maintained" for "and material as may be needed to operate such facilities properly, or for the transfer, without reimbursement of appropriations, of facilities, supplies, equipment, or material necessary and proper for authorized care for veterans, except that at no time shall the Administrator enter into any agreement which will result in a permanent reduction of Veterans' Administration hospital and domiciliary beds below the number established or approved on June 22, 1944, plus the estimated number required to meet the load of eligibles under this title,".

Subsecs. (b) to (g). Pub. L. 97–174, §3(a)(3), added subsecs. (b) to (g).

Access to Care for TRICARE-Eligible Military Retirees

Pub. L. 106–117, title I, §113, Nov. 30, 1999, 113 Stat. 1556 , provided that:

"(a) Interagency Agreement.-(1) The Secretary of Defense shall enter into an agreement (characterized as a memorandum of understanding or otherwise) with the Secretary of Veterans Affairs with respect to the provision of medical care by the Secretary of Veterans Affairs to eligible military retirees in accordance with the provisions of subsection (c). That agreement shall include provisions for reimbursement of the Secretary of Veterans Affairs by the Secretary of Defense for medical care provided by the Secretary of Veterans Affairs to an eligible military retiree and may include such other provisions with respect to the terms and conditions of such care as may be agreed upon by the two Secretaries.

"(2) Reimbursement under the agreement under paragraph (1) shall be in accordance with rates agreed upon by the Secretary of Defense and the Secretary of Veterans Affairs. Such reimbursement may be made by the Secretary of Defense or by the appropriate TRICARE Managed Care Support contractor, as determined in accordance with that agreement.

"(3) In entering into the agreement under paragraph (1), particularly with respect to determination of the rates of reimbursement under paragraph (2), the Secretary of Defense shall consult with TRICARE Managed Care Support contractors.

"(4) The Secretary of Veterans Affairs may not enter into an agreement under paragraph (1) for the provision of care in accordance with the provisions of subsection (c) with respect to any geographic service area, or a part of any such area, of the Veterans Health Administration unless-

"(A) in the judgment of that Secretary, the Department of Veterans Affairs will recover the costs of providing such care to eligible military retirees; and

"(B) that Secretary has certified and documented, with respect to any geographic service area in which the Secretary proposes to provide care in accordance with the provisions of subsection (c), that such geographic service area, or designated part of any such area, has adequate capacity (consistent with the requirements in section 1705(b)(1) of title 38, United States Code, that care to enrollees shall be timely and acceptable in quality) to provide such care.

"(5) The agreement under paragraph (1) shall be entered into by the Secretaries not later than nine months after the date of the enactment of this Act [Nov. 30, 1999]. If the Secretaries are unable to reach agreement, they shall jointly report, by that date or within 30 days thereafter, to the Committees on Armed Services and the Committees on Veterans' Affairs of the Senate and House of Representatives on the reasons for their inability to reach an agreement and their mutually agreed plan for removing any impediments to final agreement.

"(b) Depositing of Reimbursements.-Amounts received by the Secretary of Veterans Affairs under the agreement under subsection (a) shall be deposited in the Department of Veterans Affairs Health Services Improvement Fund established under section 1729B of title 38, United States Code, as added by section 202.

"(c) Copayment Requirement.-The provisions of subsections (f)(1) and (g)(1) of section 1710 of title 38, United States Code, shall not apply in the case of an eligible military retiree who is covered by the agreement under subsection (a).

"(d) Phased Implementation.-(1) The Secretary of Defense shall include in each TRICARE contract entered into after the date of the enactment of this Act [Nov. 30, 1999] provisions to implement the agreement under subsection (a).

"(2) The provisions of the agreement under subsection (a)(2) and the provisions of subsection (c) shall apply to the furnishing of medical care by the Secretary of Veterans Affairs in any area of the United States only if that area is covered by a TRICARE contract that was entered into after the date of the enactment of this Act.

"(e) Eligible Military Retirees.-For purposes of this section, an eligible military retiree is a member of the Army, Navy, Air Force, or Marine Corps who-

"(1) has retired from active military, naval, or air service;

"(2) is eligible for care under the TRICARE program established by the Secretary of Defense;

"(3) has enrolled for care under section 1705 of title 38, United States Code; and

"(4) is not described in paragraph (1) or (2) of section 1710(a) of such title."

Health-Care Sharing Agreements Between Department of Veterans Affairs and Department of Defense

Pub. L. 104–262, title III, §302(b)(2), Oct. 9, 1996, 110 Stat. 3193 , provided that: "Any services provided pursuant to agreements entered into under section 201 of such Act [Pub. L. 102–585] (38 U.S.C. 8111 note) during the period beginning on October 1, 1996, and ending on the date of the enactment of this Act [Oct. 9, 1996] are hereby ratified."

Pub. L. 102–585, title II, Nov. 4, 1992, 106 Stat. 4949 , as amended by Pub. L. 103–446, title XII, §1202(e)(1), Nov. 2, 1994, 108 Stat. 4689 ; Pub. L. 104–262, title III, §302(a), (b)(1), (c), Oct. 9, 1996, 110 Stat. 3193 , provided that:

"SEC. 201. TEMPORARY EXPANSION OF AUTHORITY FOR SHARING AGREEMENTS.

"(a) Authority.-The Secretary of Veterans Affairs may enter into an agreement with the Secretary of Defense under this section to expand the availability of health-care sharing arrangements with the Department of Defense under section 8111(c) of title 38, United States Code. Under such an agreement-

"(1) the head of a Department of Veterans Affairs medical facility may enter into agreements under section 8111(d) of that title with (A) the head of a Department of Defense medical facility, (B) with any other official of the Department of Defense responsible for the provision of care under chapter 55 of title 10, United States Code, to persons who are covered beneficiaries under that chapter, in the region of the Department of Veterans Affairs medical facility, or (C) with a contractor of the Department of Defense responsible for the provision of care under chapter 55 of title 10, United States Code, to persons who are covered beneficiaries under that chapter, in the region of the Department of Veterans Affairs medical facility; and

"(2) the term 'primary beneficiary' shall be treated as including-

"(A) with respect to the Department of Veterans Affairs, any person who is described in section 1713 of title 38, United States Code; and

"(B) with respect to the Department of Defense, any person who is a covered beneficiary under chapter 55 of title 10, United States Code.

"(b) Use of Funds.-Any amount received by the Secretary from a non-Federal entity as payment for services provided by the Secretary during a prior fiscal year under an agreement entered into under this section may be obligated by the Secretary during the fiscal year in which the Secretary receives the payment.

"SEC. 202. REQUIREMENT FOR IMPROVEMENT IN SERVICES FOR VETERANS.

"A proposed agreement authorized by section 201 that is entered into by the head of a Department of Veterans Affairs medical facility may take effect only if the Under Secretary for Health of the Department of Veterans Affairs finds, and certifies to the Secretary of Veterans Affairs, that implementation of the agreement-

"(1) will result in the improvement of services to eligible veterans at that facility; and

"(2) will not result in the denial of, or a delay in providing, access to care for any veteran at that facility.

"SEC. 203. EXPANDED SHARING AGREEMENTS WITH DEPARTMENT OF DEFENSE.

"Under an agreement under section 201, guidelines under section 8111(b) of title 38, United States Code, may be modified to provide that, notwithstanding any other provision of law, any person who is a covered beneficiary under chapter 55 of title 10 and who is furnished care or services by a facility of the Department of Veterans Affairs under an agreement entered into under section 8111 of that title, or who is described in section 1713 of title 38, United States Code, and who is furnished care or services by a facility of the Department of Defense, may be authorized to receive such care or services-

"(1) without regard to any otherwise applicable requirement for the payment of a copayment or deductible; or

"(2) subject to a requirement to pay only part of any such otherwise applicable copayment or deductible, as specified in the guidelines.

"[SEC. 204. Repealed. Pub. L. 104–262, title III, §302(b)(1), Oct. 9, 1996, 110 Stat. 3193 .]

"SEC. 205. CONSULTATION WITH VETERANS SERVICE ORGANIZATIONS.

"In carrying out this title, the Secretary of Veterans Affairs shall consult with organizations named in or approved under section 5902 of title 38, United States Code.

"SEC. 206. ANNUAL REPORT.

"(a) In General.-For each of fiscal years 1993 through 1996, the Secretary of Defense and the Secretary of Veterans Affairs shall include in the annual report of the Secretaries under section 8111(f) of title 38, United States Code, a description of the Secretaries' implementation of this section.

"(b) Additional Matters for Fiscal Year 1996 Report.-In the report under subsection (a) for fiscal year 1996, the Secretaries shall include the following:

"(1) An assessment of the effect of agreements entered into under section 201 on the delivery of health care to eligible veterans.

"(2) An assessment of the cost savings, if any, associated with provision of services under such agreements to retired members of the Armed Forces, dependents of members or former members of a uniformed service, and beneficiaries under section 1713 of title 38, United States Code.

"(3) Any plans for administrative action, and any recommendations for legislation, that the Secretaries consider appropriate to include in the report.

"SEC. 207. AUTHORITY TO BILL HEALTH-PLAN CONTRACTS.

"(a) Right To Recover.-In the case of a primary beneficiary (as described in section 201(a)(2)(B)) who has coverage under a health-plan contract, as defined in section 1729(i)(1)(A) of title 38, United States Code, and who is furnished care or services by a Department medical facility pursuant to this title, the United States shall have the right to recover or collect charges for such care or services from such health-plan contract to the extent that the beneficiary (or the provider of the care or services) would be eligible to receive payment for such care or services from such health-plan contract if the care or services had not been furnished by a department or agency of the United States. Any funds received from such health-plan contract shall be credited to funds that have been allotted to the facility that furnished the care or services.

"(b) Enforcement.-The right of the United States to recover under such a beneficiary's health-plan contract shall be enforceable in the same manner as that provided by subsections (a)(3), (b), (c)(1), (d), (f), (h), and (i) of section 1729 of title 38, United States Code."

Congressional Findings

Section 2(a) of Pub. L. 97–174 provided that: "The Congress makes the following findings:

"(1) There are opportunities for greater sharing of the health-care resources of the Veterans' Administration and the Department of Defense which would, if achieved, be beneficial to both veterans and members of the Armed Forces and could result in reduced costs to the Government by minimizing duplication and underuse of health-care resources.

"(2) Present incentives to encourage such sharing of health-care resources are inadequate.

"(3) Such sharing of health-care resources can be achieved without a detrimental effect on the primary health-care beneficiaries of the Veterans' Administration and the Department of Defense."

Regular Consultations of Assistant Secretary of Defense for Health Affairs With Surgeons General of Army, Navy, and Air Force

Section 3(c) of Pub. L. 97–174 provided that: "The Assistant Secretary of Defense for Health Affairs shall consult regularly with the Surgeons General of the Army, Navy, and Air Force in carrying out the duties and functions assigned to the Assistant Secretary in section 5011 [now 8111] of title 38, United States Code, as amended by subsection (a) of this section."

Guidelines To Promote Sharing of Health-Care Resources; Initial Establishment

Section 3(d) of Pub. L. 97–174 provided that: "The guidelines required to be established under subsection (c) of section 5011 [now 8111] of title 38, United States Code, as added by subsection (a) of this section, shall initially be established not later than twelve months after the date of the enactment of this Act [May 4, 1982]."

Section Referred to in Other Sections

This section is referred to in sections 712, 8102, 8104, 8107 of this title; title 10 sections 1104, 2641.