§8110. Operation of medical facilities

(a)(1) The Secretary shall establish the total number of hospital beds and nursing home beds in medical facilities over which the Secretary has direct jurisdiction for the care and treatment of eligible veterans at not more than 125,000 and not less than 100,000. The Secretary shall establish the total number of such beds so as to maintain a contingency capacity to assist the Department of Defense in time of war or national emergency to care for the casualties of such war or national emergency. Of the number of beds authorized pursuant to the preceding sentence, the Secretary shall operate and maintain a total of not less than 90,000 hospital beds and nursing home beds and shall maintain the availability of such additional beds and facilities in addition to the operating bed level as the Secretary considers necessary for such contingency purposes. The President shall include in the Budget transmitted to the Congress for each fiscal year pursuant to section 1105 of title 31, an amount for medical care and amounts for construction sufficient to enable the Department to operate and maintain a total of not less than 90,000 hospital and nursing home beds in accordance with this paragraph and to maintain the availability of the contingency capacity referred to in the second sentence of this paragraph. The Secretary shall staff and maintain, in such a manner as to ensure the immediate acceptance and timely and complete care of patients, sufficient beds and other treatment capacities to accommodate, and provide such care to, eligible veterans applying for admission and found to be in need of hospital care or medical services.

(2) The Secretary shall maintain the bed and treatment capacities of all Department medical facilities so as to ensure the accessibility and availability of such beds and treatment capacities to eligible veterans in all States and to minimize delays in admissions and in the provision of hospital, nursing home, and domiciliary care, and of medical services furnished pursuant to section 1712 of this title.

(3)(A) The Under Secretary for Health shall at the end of each fiscal year (i) analyze agencywide admission policies and the records of those eligible veterans who apply for hospital care, medical services, and nursing home care, but are rejected or not immediately admitted or provided such care or services, and (ii) review and make recommendations regarding the adequacy of the established operating bed levels, the geographic distribution of operating beds, the demographic characteristics of the veteran population and the associated need for medical care and nursing home facilities and services in each State, and the proportion of the total number of operating beds that are hospital beds and that are nursing home beds.

(B) After considering the analyses and recommendations of the Under Secretary for Health pursuant to subparagraph (A) of this paragraph for any fiscal year, the Secretary shall report to the committees, on or before December 1 after the close of such fiscal year, on the results of the analysis of the Under Secretary for Health and on the numbers of operating beds and level of treatment capacities required to enable the Department to carry out the primary function of the Veterans Health Administration. The Secretary shall include in each such report recommendations for (i) the numbers of operating beds and the level of treatment capacities required for the health care of veterans and the maintenance of the contingency capacity referred to in paragraph (1) of this subsection, and (ii) the appropriate staffing and funds therefor.

(4)(A) With respect to each law making appropriations for the Department for any fiscal year (or any part of a fiscal year), there shall be provided to the Department the funded personnel ceiling defined in subparagraph (D) of this paragraph and the funds appropriated therefor.

(B) In order to carry out the provisions of subparagraph (A) of this paragraph, the Director of the Office of Management and Budget shall, with respect to each such law (i) provide to the Department for the fiscal year (or part of a fiscal year) concerned such funded personnel ceiling and the funds necessary to achieve such ceiling, and (ii) submit to the appropriate committees of the Congress and to the Comptroller General of the United States certification that the Director has so provided such ceiling. Not later than the thirtieth day after the enactment of such a law or, in the event of the enactment of such a law more than thirty days prior to the fiscal year for which such law makes such appropriations, not later than the tenth day of such fiscal year, the certification required in the first sentence of this subparagraph shall be submitted, together with a report containing complete information on the personnel ceiling that the Director has provided to the Department for the employees described in subparagraph (D) of this paragraph.

(C) Whenever the Director of the Office of Management and Budget is required to submit a certification under subparagraph (B) of this paragraph, the Comptroller General shall submit to the appropriate committees of the Congress a report stating the Comptroller General's opinion as to whether the Director has complied with the requirements of that subparagraph. The Comptroller General shall submit the report not later than fifteen days after the end of the period specified in such subparagraph for the Director to submit the certification.

(D) For the purposes of this paragraph, the term "funded personnel ceiling" means, with respect to any fiscal year (or part of a fiscal year), the authorization by the Director of the Office of Management and Budget to employ (under the appropriation accounts for medical care, medical and prosthetic research, and medical administration and miscellaneous operating expenses) not less than the number of employees for the employment of which appropriations have been made for such fiscal year (or part of a fiscal year).

(5) Notwithstanding any other provision of this title or of any other law, funds appropriated for the Department under the appropriation accounts for medical care, medical and prosthetic research, and medical administration and miscellaneous operating expenses may not be used for, and no employee compensated from such funds may carry out any activity in connection with, the conduct of any study comparing the cost of the provision by private contractors with the cost of the provision by the Department of commercial or industrial products and services for the Veterans Health Administration unless such funds have been specifically appropriated for that purpose.

(6)(A) Temporary research personnel of the Veterans Health Administration shall be excluded from any ceiling on full-time equivalent employees of the Department or any other personnel ceiling otherwise applicable to employees of the Department.

(B) For purposes of subparagraph (A) of this paragraph, the term "temporary research personnel" means personnel who are employed in the Veterans Health Administration in other than a career appointment for work on a research activity and who are not paid by the Department or are paid from funds appropriated to the Department to support such activity.

(b) When the Secretary determines, in accordance with regulations which the Secretary shall prescribe, that a Department facility serves a substantial number of veterans with limited English-speaking ability, the Secretary shall establish and implement procedures, upon the recommendation of the Under Secretary for Health, to ensure the identification of sufficient numbers of individuals on such facility's staff who are fluent in both the language most appropriate to such veterans and in English and whose responsibilities shall include providing guidance to such veterans and to appropriate Department staff members with respect to cultural sensitivities and bridging linguistic and cultural differences.

(c)(1) Notwithstanding any other provision of law but except as provided in paragraph (3) of this subsection-

(A) a contract may not be entered into as a result of which an activity at a health-care facility over which the Secretary has direct jurisdiction (hereinafter in this subsection referred to as a "Department health-care facility") would be converted from an activity performed by Federal employees to an activity performed by employees of a contractor of the Government unless the Under Secretary for Health has determined that such activity is not a direct patient care activity or an activity incident to direct patient care; and

(B) in the case of an activity determined by the Under Secretary for Health under clause (A) of this paragraph to be neither such activity, the Secretary, after considering the advice of the Under Secretary for Health and the results of a study described in paragraph (4) of this subsection, may, in the exercise of the Secretary's sole discretion but subject to paragraph (2) of this subsection, enter into a contract as a result of which the activity would be converted from an activity performed by Federal employees to an activity performed by employees of a contractor of the Government.

(2) The Secretary may enter into a contract under the circumstances described in paragraph (1)(B) of this subsection only if responsive bids are received from at least two responsible, financially autonomous bidders and the Secretary determines-

(A) based on the study described in paragraph (4) of this subsection with respect to the activity involved, that the cost to the Government of the performance of such activity under such a contract over the first five years of such performance (including the cost to the Government of conducting the study) would be lower by 15 percent or more than the cost of performance of such activity by Federal employees; and

(B) that the quantity and quality of health-care services provided to eligible veterans by the Department at the facility at which the activity is carried out would be maintained or enhanced as a result of such a contract.

(3) The provisions of paragraph (1) of this subsection do not apply-

(A) to a contract or agreement under chapter 17 or section 8111, 8111A, or 8153 of this title or under section 1535 of title 31; or

(B) to a contract under section 513 or 7409 of this title if the Under Secretary for Health determines that such contract is necessary in order to provide services to eligible veterans at a Department health-care facility that could not otherwise be provided at such facility.

(4) A study referred to in paragraph (1)(B) of this subsection is a study that-

(A) compares the cost of performing an activity at a Department health-care facility through Federal employees with the cost of performing such activity through a contractor of the Government;

(B) is based on an estimate of the most efficient and cost-effective organization for the effective performance of the activity by Federal employees;

(C) with respect to the costs of performance of such activity through Federal employees, is based (to the maximum extent feasible) on actual cost factors of the Department for pay and retirement and other fringe benefits for the Federal employees who perform the activity; and

(D) takes into account (i) the costs to the Government (including severance pay) that would result from the separation of employees whose Federal employment may be terminated as a result of the Secretary entering into a contract described in paragraph (1)(B) of this subsection, and (ii) all costs to the Government associated with the contracting process.

(5) Prior to conducting a study described in paragraph (4) of this subsection, the Secretary shall (in a timely manner) submit to the appropriate committees of the Congress written notice of a decision to study the activity involved for possible performance by a contractor.

(6) If, after completion of a study described in paragraph (4) of this subsection, a decision is made to convert performance of the activity involved to contractor performance, the Secretary shall promptly submit to the appropriate committees of the Congress written notice of such decision and a report with respect to such conversion. Each such report shall include-

(A) a summary of the study described in paragraph (4) of this subsection with respect to such contract;

(B) a certification that the study itself is available to such committees and that the results of the study meet the requirements of paragraph (2)(A) of this subsection;

(C) a certification that the requirements of paragraph (2)(B) of this subsection would be met with respect to such contract and a summary of the information that supports such certification;

(D) if more than 25 jobs are affected, information showing the potential economic impact on the Federal employees affected and the potential economic impact on the local community and the Government of contracting for performance of such activity; and

(E) information showing the amount of the bid accepted for a contract for the performance of the activity and the cost of performance of such activity by Federal employees, together with the total estimated cost which the Government will incur because of the contract.

(7) Paragraphs (1) through (6) shall not be in effect during fiscal years 1995 through 1999.

(8) During the period covered by paragraph (7), whenever an activity at a Department health-care facility is converted from performance by Federal employees to performance by employees of a contractor of the Government, the Secretary shall-

(A) require in the contract for the performance of such activity that the contractor, in hiring employees for the performance of the contract, give priority to former employees of the Department who have been displaced by the award of the contract; and

(B) provide to such former employees of the Department all possible assistance in obtaining other Federal employment or entrance into job training and retraining programs.

(9) The Secretary shall include in the Secretary's annual report to Congress under section 529 of this title, for each fiscal year covered by paragraph (7), a report on the use during the year covered by the report of contracting-out authority made available by reason of paragraph (7). The Secretary shall include in each such report a description of each use of such authority, together with the rationale for the use of such authority and the effect of the use of such authority on patient care and on employees of the Department.

(Added Pub. L. 96–22, title III, §301(a), June 13, 1979, 93 Stat. 59 , §5010; amended Pub. L. 96–151, title III, §301(a), Dec. 20, 1979, 93 Stat. 1095 ; Pub. L. 97–66, title VI, §601(b), Oct. 17, 1981, 95 Stat. 1033 ; Pub. L. 97–72, title I, §108, Nov. 3, 1981, 95 Stat. 1053 ; Pub. L. 97–306, title IV, §409(b), Oct. 14, 1982, 96 Stat. 1446 ; Pub. L. 97–452, §2(e)(4), Jan. 12, 1983, 96 Stat. 2479 ; Pub. L. 98–160, title VII, §702(19), Nov. 21, 1983, 97 Stat. 1010 ; Pub. L. 98–528, title I, §102, Oct. 19, 1984, 98 Stat. 2688 ; Pub. L. 99–576, title VII, §702(15), Oct. 28, 1986, 100 Stat. 3302 ; Pub. L. 100–322, title II, §222(a), title IV, §401(a), May 20, 1988, 102 Stat. 531 , 543; renumbered §8110 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 XI, §1103, title XII, §1201(b)(1), (d)(17), (g)(7), Nov. 2, 1994, 108 Stat. 4681 , 4682, 4684, 4687.)

Prior Provisions

Provisions similar to those comprising this section were contained in former section 5001(a)(2), (3), (h) of this title prior to the general revision of this subchapter by Pub. L. 96–22.

Amendments

1994-Subsec. (a)(3)(B), (5), (6). Pub. L. 103–446, §1201(b)(1), substituted "Veterans Health Administration" for "Department of Medicine and Surgery" wherever appearing.

Subsec. (c)(3)(B). Pub. L. 103–446, §1201(d)(17), substituted "section 513 or 7409" for "section 213 or 4117".

Subsec. (c)(7). Pub. L. 103–446, §1201(g)(7), which provided for striking out obsolete or executed provisions and directed the amendment of subsec. (c) by striking out par. (7), was not executed because of the prior amendment of subsec. (c) by Pub. L. 103–446, §1103. See below.

Pub. L. 103–446, §1103, added par. (7) and struck out former par. (7) which read as follows: "Not later than February 1, 1984, and February 1 of each of the five succeeding years, the Secretary shall submit a written report to Congress describing the extent to which activities at Department health-care facilities were performed by contractors during the preceding fiscal year and the actual cost savings resulting from such contracts."

Subsec. (c)(8), (9). Pub. L. 103–446, §1103, added pars. (8) and (9).

1992-Subsecs. (a)(3), (b), (c)(1), (3)(B). 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 5010 of this title as this section.

Subsec. (a). Pub. L. 102–83, §5(c)(1), substituted "1712" for "612" in par. (2).

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

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

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

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

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

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

Pub. L. 102–40, §402(d)(1), substituted "8111, 8111A, or 8153" for "5011, 5011A, or 5053" in par. (3)(A).

1988-Subsec. (a)(6). Pub. L. 100–322, §222(a), added par. (6).

Subsec. (c)(2). Pub. L. 100–322, §401(a), inserted "responsive bids are received from at least two responsible, financially autonomous bidders and" after "only if".

1986-Subsec. (a)(1). Pub. L. 99–576 substituted "125,000 and not less than 100,000" for "one hundred and twenty-five thousand and not less than one hundred thousand" and "90,000" for "ninety thousand" in two places.

1984-Subsec. (a)(4)(C). Pub. L. 98–528 substituted provision requiring the Comptroller General to submit a report stating the Comptroller General's opinion as to whether the Director has complied with subpar. (B) not later than fifteen days after end of period specified in that subparagraph for Director to submit required certification for provision which had required the Comptroller General to submit a report stating the Comptroller General's opinion as to whether the Director has complied with the requirements of any law making appropriations for the Veterans' Administration for any fiscal year or any part thereof regarding funded personnel ceilings not later than forty-fifth day after enactment of each such law.

1983-Subsec. (a)(1). 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))".

Subsec. (c)(2)(B). Pub. L. 98–160 substituted "quantity and quality" for "quantity or quality".

1982-Subsec. (c). Pub. L. 97–306 added subsec. (c).

1981-Subsec. (a)(1). Pub. L. 97–72, §108(a)(1), struck out provision authorizing the Administrator, subject to the approval of the President to establish and operate not less than 125,000 hospital beds in medical facilities over which the Administrator has direct jurisdiction for the care and treatment of eligible veterans and substituted therefor provisions directing the Administrator to establish a total number of hospital beds and nursing home beds in medical facilities over which the Administrator has direct jurisdiction for the care and treatment of eligible veterans at not more than one hundred and twenty-five thousand and not less than one hundred thousand, and provided that the Administrator establish the total number of such beds so as to maintain a contingency capacity to assist the Department of Defense in time of war or national emergency to care for the casualties of such war or national emergency, that of the number of beds authorized pursuant to the preceding sentence, the Administrator operate and maintain a total of not less than ninety thousand hospital beds and nursing home beds and maintain the availability of such additional beds and facilities in addition to the operating bed level as the Administrator considers necessary for such contingency purposes, and that the President include in the Budget transmitted to the Congress for each fiscal year pursuant to section 201(a) of the Budget and Accounting Act, 1921 (31 U.S.C. 11(a)), an amount for medical care and amounts for construction.

Subsec. (a)(3). Pub. L. 97–72, §108(a)(2), struck out provision requiring that the Chief Medical Director periodically analyze agencywide admission policies and the records of those eligible veterans who apply for hospital care and medical services and annually advise each committee of the results and the added requirements which those results indicate and substituted therefor provisions that the Chief Medical Director, at the end of each fiscal year, (i) analyze agencywide admission policies and the records of those eligible veterans who apply for hospital care, medical services and nursing home care, but are rejected or not immediately admitted or provided such care or services, and (ii) review and made recommendations regarding the adequacy of the established operating bed levels, the geographic distribution of operating beds, the demographic characteristics of the veteran population and the associated need for medical care and nursing home facilities and services in each State, and the proportion of the total number of operating beds that are hospital beds and that are nursing home beds, and that, after considering the analyses and recommendations of the Chief Medical Director pursuant to subparagraph (A) of this paragraph for any fiscal year, the Administrator report to the committees, on or before December 1 after the close of such fiscal year, on the results of the analysis of the Chief Medical Director and on the required number of beds and the level of treatment capacities required.

Subsec. (a)(4)(A). Pub. L. 97–66, §601(b)(1)(A), inserted "for any fiscal year (or any part of a fiscal year)" after "With respect to each law making appropriations for the Veterans' Administration".

Subsec. (a)(4)(B). Pub. L. 97–66, §601(b)(1)(B), inserted "(or part of a fiscal year)" after "provide to the Veterans' Administration for the fiscal year".

Subsec. (a)(4)(D). Pub. L. 97–66, §601(b)(1)(B), inserted "(or part of a fiscal year)" after "fiscal year" in two places.

Subsec. (a)(5). Pub. L. 97–66, §601(b)(2), added par. (5).

Subsecs. (b), (c). Pub. L. 97–72, §108(b), redesignated subsec. (c) as (b). Former subsec. (b), authorizing the Administrator to establish, subject to the approval of the President, not less than twelve thousand beds during fiscal year 1980, and during each fiscal year thereafter, for the furnishing of nursing home care to eligible veterans in facilities over which the Administrator has direct jurisdiction, was struck out.

1979-Subsec. (a)(4). Pub. L. 96–151 added par. (4).

Effective Date of 1988 Amendment

Section 222(b) of Pub. L. 100–322 provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to fiscal years after fiscal year 1987."

Section 401(b) of Pub. L. 100–322 provided that: "The amendment made by subsection (a) [amending this section] shall apply only with respect to the awarding of contracts under solicitations issued after the date of the enactment of this Act [May 20, 1988]."

Effective Date of 1981 Amendment

Amendment by section 601(b)(1) of Pub. L. 97–66 effective Oct. 1, 1981, see section 701(b)(4) of Pub. L. 97–66, set out as a note under section 1114 of this title.

Amendment by section 601(b)(2) of Pub. L. 97–66 effective Oct. 17, 1981, see section 701(b)(1) of Pub. L. 97–66, set out as a note under section 1114 of this title.

Effective Date of 1979 Amendment

Section 301(b) of Pub. L. 96–151 provided that: "The amendment made by subsection (a) [amending this section] shall take effect with respect to Public Law 96–103 [Nov. 5, 1979, 93 Stat. 771], but, with respect to such Public Law, the certification and report required by subparagraph (B) of paragraph (4) of section 5010 [now 8110] of title 38, United States Code (as added by such amendment), and the report required by subparagraph (C) of such paragraph (as added by such amendment) shall be submitted to the appropriate committees of the Congress not later than January 15, 1980, and February 1, 1980, respectively."

Conversion of Underused Space to Domiciliary-Care Beds

Section 136 of Pub. L. 100–322 directed Administrator, not later than June 1, 1988, to convert underused space located in facilities under jurisdiction of Administrator in urban areas with significant numbers of homeless veterans into 500 domiciliary-care beds to be used for care of veterans in need of domiciliary care, primarily homeless veterans.

Policy of Comprehensive Veterans' Health-Care System

Section 409(a) of Pub. L. 97–306 provided that: "It is the policy of the United States that the Veterans' Administration-

"(1) shall maintain a comprehensive, nationwide health-care system for the direct provision of quality health-care services to eligible veterans; and

"(2) shall operate such system through cost-effective means that are consistent with carrying out fully the functions of the Department of Medicine and Surgery of the Veterans' Administration under title 38, United States Code."

Section Referred to in Other Sections

This section is referred to in sections 8103, 8111 of this title.