Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020

H.R. 7105 - the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 represents a praiseworthy bipartisan effort to improve several aspects of Department of Veterans Affairs (VA) services to United States veterans.

Since the Act is now a statute (law), the official citation is:

  • Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, 134 Stat. 4932.

For the most important aspects of the new law for C&P exams, see Encapsulation (below).

→ Jump to Table of Contents


Heading for bills introduced during the 116th Congress (2019–2020), 2nd session.Heading for bills introduced during the 116th Congress (2019–2020), 2nd session.

Encapsulation

Concise summary of the most important aspects of this new law, related to C&P exams

  1. Stop eliminating C&P examiner positions and re-establish previously eliminated positions, as needed, so that VA retains a critical knowledge base for conducting exams related to military sexual trauma (MST), post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and toxic exposure.

  2. Hold underperforming contract examiners accountable.

  3. Make DBQs available to the public again.

  4. Military sexual trauma (MST) that causes depressive, anxiety, and other mental disorders is now covered - it's not just PTSD anymore.

  5. MST claimants must be given the opportunity to select a male or female C&P examiner.

→ Jump to Table of Contents


Public Law 116–315

The legislation, H.R. 7105 was signed by the President on 5 Jan 2021 and has been designated Public Law No. 116-315, with (eventual) publication in United States Statutes at Large in volume 134, page 4932. Thus, the legal citation1 for the Act (as law) is: 

Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, 134 Stat. 4932.

The Act incorporates several other bills, in whole or in part, introduced in the House of Representatives and Senate.

For a complete list, with the ability to compare the original bill with the text as it appears in the Act, see H.R. 7105 (116th): Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 [overview] on GovTrack.us.

Footnote
1. Tʜᴇ Bʟᴜᴇʙᴏᴏᴋ: A Uɴɪғᴏʀᴍ Sʏsᴛᴇᴍ ᴏғ Cɪᴛᴀᴛɪᴏɴ R. 12.4(a), (Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020), https://www.legalbluebook.com/bluebook/v21/rules/12-statutes/12-4-session-laws.


Table of Contents

H.R. 7105, the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, table of contents:

Note: I originally published some of this material on the C&P Exam News page, which is why some of the entries begin with dates [in brackets].


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New Legislation Will Improve Services to Veterans Seeking Service-connected Disability Benefits

[21 December 2020] H.R. 7105 is a bill (legislation) originating in the House of Representatives. The bill's short title is "The Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020."



Major Legislation that Will Help Veterans

[28 Dec 2020] Here is a blog post and a news article that explain why this new law is so important for veterans.

A Major Piece of Veterans' Legislation Is About to Become Law by Lou Celli and David Shulkin M.D. (The Shulkin Blog, 21 Dec 2020), provides a thorough summary of the bill.

Congress finalizes sweeping veterans policy bill with new protections for women, students by Leo Shane III (Military Times, 16 Dec 2020) gives a much more succinct summary.


Why Such a Long "Short Title"?

(a) Sʜᴏʀᴛ Tɪᴛʟᴇ.—This Act may be cited as the “Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020”.

[3 January 2021] H.R. 7105, the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, has passed Congress and awaits the President's signature.

Yes, it's a long title but for a good reason.

Johnny Isakson is a retired U.S. Senator (R-GA), who served as Chairman of the Senate Veterans' Affairs Committee from 2015–2019. Sen. Isakson served in the U.S. Air Force from 1966–1972 (SSgt).

Dr. Phil Roe is a retired U.S. Representative (R-TN) who served as Chairman of the House Veterans' Affairs Committee from 2017–2019, and Ranking Member from 2019–2021. Rep. Roe served in the U.S. Army Medical Corps from 1972–1974 (MAJ). 

Veterans service organizations and members of both parties respect these politicians in part because they have exhibited genuine care and concern for veterans.

The fact that the House of Representatives (largely controlled by the Democrats) and several Democratic senators supported naming the legislation after Roe and Isakson also speaks to the high regard they enjoy among their peers.


Provisions Related to C&P Exams for PTSD and Other Mental Disorders

I briefly summarize sections of the law pertinent to C&P exams (below), followed by selected text from the new law.


Key Points for C&P Exams

The first three Key Points are all found in Section 2002 of the bill, the full citation of which is:

Matters relating to Department of Veterans Affairs medical disability examinations, H.R. 7105, Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, tit. II, subtit. A, sec. 2002.

Note: That is the citation for the enrolled bill as amended by the House of Representatives on 16 Dec 2020. The citation for section 2002 of the law is:

Matters Relating to Department of Veterans Affairs Medical Disability ExaminationsJohnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, § 2002, 134 Stat. 4932, __ (Jan. 5, 2021).

Congress passed the bill on 16 Dec 2020, after the House agreed to a Senate amendment:

Resolving differences -- House actions: On motion that the House suspend the rules and agree to the Senate amendment, Agreed to by voice vote, 166 Cᴏɴɢ. Rᴇᴄ., no. 213, H7169–7204 (daily ed. Dec. 16, 2020).



Prohibits the Elimination of C&P Examiner Positions

Key Point #1: The Veterans Health Administration (VHA) cannot eliminate medical examiner positions until certain criteria are met.

Sec. 2002 (b) TEMPORARY HALT ON ELIMINATION OF MEDICAL EXAMINER POSITIONS IN DEPARTMENT OF VETERANS AFFAIRS.—The Secretary of Veterans Affairs shall temporarily suspend the efforts of the Secretary in effect on the day before the date of the enactment of this Act to eliminate medical examiner positions in the Department of Veterans Affairs until the number of individuals awaiting a medical examination with respect to medical disability of the individuals for benefits under laws administered by the Secretary that are carried out through the Under Secretary for Benefits is equal to or less than the number of such individuals who were awaiting such a medical examination with respect to such purposes on March 1, 2020. (emphasis added)
 


VA Report to Congress on C&P Exams

Key Point #2: VA must report to Congress on the provision of medical examinations, including "how the Secretary will increase the capacityefficiency, and timeliness of physician assistants, nurse practitioners, audiologists, and psychologists of the Veterans Health Administration with respect to completing medical examinations ...."

Sec. 2002 (c) REPORT ON PROVISION OF MEDICAL EXAMINATIONS.—

(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to the appropriate committees of Congress a report on the provision of medical examinations described in subsection (b) by the Department. 

(2) CONTENTS.—The report submitted under paragraph (1) shall cover the following: 

(A) How the Secretary will increase the capacityefficiency, and timeliness of physician assistants, nurse practitioners, audiologists, and psychologists of the Veterans Health Administration with respect to completing medical examinations described in subsection (b)

(B) The total number of full-time equivalent employees among all physician assistants, nurse practitioners, audiologists, and psychologists needed for the increases described in subparagraph (A)

(C) An assessment regarding the importance of retaining a critical knowledge base within the Department for performing medical examinations for veterans filing claims for compensation under chapters 11α and 13ß of title 38, United States Code, including with respect to military sexual trauma, post-traumatic stress disorder, traumatic brain injury, and toxic exposure. (emphasis added)

Footnotes
α. Compensation for Service-connected Disability or Death, 38 U.S.C., chap. 11.

ß. Dependency and Indemnity Compensation for Service-connected Deaths, 38 U.S.C., chap. 13.


Comment on Key Point #2

When I first read Sec. 2002(c)(2)(A), requiring VA to report to Congress on "how the Secretary will increase the capacity, efficiency, and timeliness [of examiners completing C&P exams]", I worried that Congress was making the same mistake VA has made for decades, i.e., concentrating on productivity and ignoring the quality of C&P exams.

But when I read Sec. 2002(c)(2) in its entirety I realized that Congress is seeking something different.

Congress believes that retaining a critical knowledge base for performing C&P exams is important, particularly for the specified exam types. Therefore, Congress wants VA to ensure they have a sufficient number of C&P examiners to conduct such exams in an efficient manner.

In other words: Stop eliminating C&P examiner positions; re-establish previously eliminated positions ("full-time equivalent employees") as needed so that VA retains a critical knowledge base for conducting exams related to military sexual trauma (MST), post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and toxic exposure.


GAO Review and Report to Congress

Key Point #3: In addition to requiring that VA report to Congress, the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 instructs the General Accounting Office (GAO) to conduct a review and report to the House and Senate Committees on Veterans' Affairs. 

Sec. 2002 (d) COMPTROLLER GENERALΓ OF THE UNITED STATES REVIEW.—

(1) REVIEW REQUIRED.—Not later than 360 days after the date of the enactment of this Act, the Comptroller General of the United States shall commence a review of the implementation of the pilot program authorized under subsection (a) of section 504 of the Veterans’ Benefits Improvements Act of 1996 (Public Law 104–275; 38 U.S.C. 5101 note). 

(2) ELEMENTS.—The review conducted under paragraph (1) shall include the following: 

(A) An assessment of the use of subsection (c) of section 504 of such Act, as amended by subsection (a)(1) of this section. 

(B) Efforts to retain and recruit medical examiners as employees of the Department. 

(C) Use of telehealth for medical examinations described in subsection (b) that are administered by the Department. 

(e) BRIEFING ON RECOMMENDATIONS OF COMPTROLLER GENERAL OF THE UNITED STATES.—Not later than 60 days after the date of the enactment of this Act, the Secretary shall provide to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a briefing on how the Secretary will implement the recommendations of the Comptroller General of the United States regarding— 

(1) the monitoring of the training of providers of examinations pursuant to contracts under section 504 of the Veterans’ Benefits Improvements Act of 1996 (Public Law 104–275; 38 U.S.C. 5101 note);π and (2) ensuring such providers receive such training. 

(f) HOLDING UNDERPERFORMING CONTRACT MEDICAL EXAMINERS ACCOUNTABLE.—The Secretary shall take such actions as may be necessary to hold accountable the providers of medical examinations pursuant to contracts under section 504 of the Veterans’ Benefits Improvements Act of 1996 (Public Law 104–275; 38 U.S.C. 5101 note)Σ who are underperforming in the meeting of the needs of veterans through the performance of medical examinations pursuant to such contracts. (emphasis added)

Footnotes
Γ. The Comptroller General of the United States is the director of the 
Government Accountability Office, a legislative branch agency established by Congress to ensure the fiscal and managerial accountability of the federal government. The Comptroller General is appointed to a 15-year term.

π. "contracts under section 504 ..." refers to Veterans Benefits Administration (VBA) contracts with Medical Disability Evaluation (MDE) companies to conduct C&P exams on behalf of the Department of Veterans Affairs. From Wikipedia:

The definition of "VA psychologist or psychiatrist" includes psychologists and psychiatrists in the private sector who conduct C&P exams for a Medical Disability Evaluation (MDE) company under contract with the VBA. The companies with current VBA contracts are Logistics Health, Inc. (LHI); Veterans Evaluation Services (VES); Vet Fed; and QTC (QTC in turn contracts with Magellan Health to manage their network of providers). [footnotes omitted]

Σ38 U.S.C. 5101 note:
Pɪʟᴏᴛ Pʀᴏɢʀᴀᴍ ғᴏʀ Usᴇ ᴏғ Cᴏɴᴛʀᴀᴄᴛ Pʜʏsɪᴄɪᴀɴs ғᴏʀ Dɪsᴀʙɪʟɪᴛʏ Exᴀᴍɪɴᴀᴛɪᴏɴs

Pub. L. 104–275, title V, § 504, Oct. 9, 1996, 110 Stat. 3341, as amended by ... provided that:

(a) Aᴜᴛʜᴏʀɪᴛʏ.—The Secretary of Veterans Affairs, acting through the Under Secretary for Benefits, may conduct a pilot program under this section under which examinations with respect to medical disability of applicants for benefits under laws administered by the Secretary that are carried out through the Under Secretary for Benefits may be made by persons other than employees of the Department of Veterans Affairs. Any such examination shall be performed pursuant to contracts entered into by the Under Secretary for Benefits with those persons.

(b) Lɪᴍɪᴛᴀᴛɪᴏɴ.—The Secretary may carry out the pilot program under this section as follows:

(1) In fiscal years before fiscal year 2015, through not more than 10 regional offices of the Department of Veterans Affairs.

(2) In fiscal year 2015, through not more than 12 regional offices of the Department.

(3) In fiscal year 2016, through not more than 15 regional offices of the Department.

(4) In fiscal year 2017 and each fiscal year thereafter, through such regional offices of the Department as the Secretary considers appropriate.


Public DBQs Are Back

The Veterans Benefits Administration (VBA) removed Disability Benefits Questionnaires from the public VA website following a February 2020 VA Office of Inspector General (VAOIG) report that issued recommendations such as:

"Determine whether public-use disability benefits questionnaires continue to be an effective means of gathering evidence to support claims for benefit entitlement and, if necessary, take steps to discontinue their use."σ

On the VBA website, the agency explains their decision to remove public-facing DBQs as follows:

  • VBA has discontinued the use of public facing Disability Benefits Questionnaires (DBQs). Originally, public facing DBQs were designed to assist Veterans living overseas to obtain medical evidence in support of their benefit claims where limited options were available. Today, VA works with contracted providers in more than 30 foreign countries to conduct disability medical examinations.

However, that explanation is incomplete and misleading.

VBA issued a more complete and accurate explanation in a VBA BulletinDiscontinuance of Publicly Available Disability Benefits Questionnaires (DBQs) [PDF].

Key Point #4: Section 2006 of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 states in part:

(d) (1) The Secretary shall publish in a central location on the internet website of the Department—

(A) the disability benefit questionnaire forms of the Department for the submittal of evidence from non-Department medical providers regarding a disability of a claimant, including any form or process that replaces any such disability benefit questionnaire form; and

(B) details about the process used by the Department for submittal of evidence described in subparagraph (A). [emphasis added]

The Act also requires that VA:

... assess the feasibility and advisability of replacing disability benefit questionnaire forms that are used by non-Department medical providers to submit to the Secretary evidence regarding a disability of a claimant for benefits under laws administered by the Secretary, with another consistent process that considers evidence equally, whether provided by a Department or a non-Department medical provider ....µ

If VA decides to replace DBQs with an alternative evidence submission process, the agency must:

  • "... collaborate with, partner with, and consider the advice of veterans service organizations, and such other stakeholders as the Secretary considers appropriate, on the replacement forms and process for submitting such forms";τ

  • "... ensure that all medical information provided will be considered equally, whether it is provided by a Department medical provider or a non-Department medical provider."Φ


Footnotes
σOғғ. Iɴsᴘᴇᴄᴛᴏʀ Gᴇɴ., Dᴇᴘ'ᴛ Vᴇᴛᴇʀᴀɴs Aғғ., Rᴇᴘ. Nᴏ. 19-07119-80, Tᴇʟᴇʜᴇᴀʟᴛʜ Pᴜʙʟɪᴄ-Usᴇ Qᴜᴇsᴛɪᴏɴɴᴀɪʀᴇs Wᴇʀᴇ Usᴇᴅ Iᴍᴘʀᴏᴘᴇʀʟʏ ᴛᴏ Dᴇᴛᴇʀᴍɪɴᴇ Dɪsᴀʙɪʟɪᴛʏ Bᴇɴᴇғɪᴛs 19 (Feb. 18, 2020), https://www.va.gov/oig/pubs/VAOIG-19-07119-80.pdf

µPublication and Acceptance of Disability Benefit Questionnaire Forms of Department of Veterans Affairs, Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, § 2006(d)(1)(A)(i), 134 Stat. 4932, __ (Jan. 5, 2021).

τ§ 2006(d)(1)(B).

Φ§ 2006(d)(2)(C).


MST that Causes Depressive, Anxiety, & Other Mental Disorders Now Covered - Not Just PTSD

Prior to the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, veterans who endured military sexual trauma (MST) and who filed a claim for disability benefits were covered under 38 C.F.R. § 3.304(f)(5) only if the veteran had been diagnosed with post-traumatic stress disorder (PTSD).

Key Point #5: Section 5501 of the Act rectifies that limitation:

(a) Specialized Teams To Evaluate Claims Involving Military Sexual Trauma.—

(1) IN GENERAL.—subchapter VI of chapter 11 of such title [General Compensation Provisions, 38 U.S.C., chap. 11, subchap. VI] is amended by adding at the end the following new section:

Ҥ 1164. Specialized teams to evaluate claims involving military sexual trauma

“(a) In General.—The Secretary shall establish specialized teams to process claims for compensation for a covered mental health condition based on military sexual trauma experienced by a veteran during active military, naval, or air service.

“(b) Training.—The Secretary shall ensure that members of teams established under subsection (a) are trained to identify markers indicating military sexual trauma.

“(c) Definitions.—In this section:

“(1) The term covered mental health condition means post-traumatic stress disorder, anxiety, depression, or other mental health diagnosis described in the current version of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association that the Secretary determines to be related to military sexual trauma.

“(2) The term ‘military sexual trauma’ means, with respect to a veteran, a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment during active military, naval, or air service.”.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

“1164. Specialized teams to evaluate claims involving military sexual trauma.”.Θ


38 U.S.C. 1164

Note that the United States Code will therefore contain a new section, although it has not been added yet (because the Act did not become law until recently—on 5 Jan 2021). The citation for the new section will be: 

  • Specialized teams to evaluate claims involving military sexual trauma, 38 U.S.C. 1164.

And the citation for the "covered mental health condition" definition will be:

  • 38 U.S.C. 1164(c)(1).

Footnote
Θ
Evaluation of Service-connection of Mental Health Conditions Relating to Military Sexual Trauma, Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, § 5501(a), 134 Stat. 4932, __ (Jan. 5, 2021).


MST Claimants Must Be Given the Opportunity to Select a Male or Female C&P Examiner

Although most VA medical centers and medical disability examination (MDE) companies already offered veterans a choice of a male or female C&P examiner, it's now mandatory.

Key Point #6: Section 5502 requires that all VAMCs and MDE companies communicate with claimants filing MST-related claims to inform them that they have a right to select the gender of their C&P examiner, and to ask the veteran if he or she has an examiner gender preference. 

Sec. 5502. Choice of Sex of Department of Veterans Affairs Medical Examiner for Assessment of Claims for Compensation Relating to Disability Resulting From Physical Assault of a Sexual Nature, Battery of a Sexual Nature, or Sexual Harassment.

(a) In General.—Subchapter VI of chapter 11 of title 38, United States Code, as amended by section 5501 of this title, is further amended by inserting after section 1164, as added by section 5501, the following new section:

“§ 1165. Choice of sex of medical examiner for certain disabilities

“(a) In General.—The Secretary shall ensure that a veteran who requires a medical examination from a covered medical provider in support of a claim for compensation under this chapter for a mental or physical health condition that resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment may designate the sex of the medical provider who provides such medical examination.

“(b) Covered Medical Providers.—For purposes of this section, a covered medical provider is any medical provider who is employed by the Department or is under any contract with the Department to provide a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim.

“(c) Notice.—Before providing any medical examination for a veteran in support for a claim described in subsection (a), the Secretary shall notify the veteran of the veteran’s rights under subsection (a).”.

(b) Cʟᴇʀɪᴄᴀʟ Aᴍᴇɴᴅᴍᴇɴᴛ.—The table of sections at the beginning of chapter 11 of such title, as amended by section 5501 of this title, is further amended by inserting after the item relating to section 1164 the following new item:

“1165. Choice of sex of medical examiner for certain disabilities.”.Ω

Footnote
Ω
Choice of Sex of Department of Veterans Affairs Medical Examiner for Assessment of Claims for Compensation Relating to Disability Resulting From Physical Assault of a Sexual Nature, Battery of a Sexual Nature, or Sexual Harassment, Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, § 5502, 134 Stat. 4932, __ (Jan. 5, 2021).


38 U.S.C. 1165

Note that the United States Code will therefore contain a new section, although it has not been added yet (because the Act did not become law until recently—on 5 Jan 2021). The citation for the new section will be: 

  • Choice of sex of medical examiner for certain disabilities, 38 U.S.C. 1165.


Code of Federal Regulations (CFR)

During 2021, the Department of Veterans Affairs (VA) will develop new regulations implementing the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020.

Stay tuned to notices of proposed rules published in the Federal Register if you want to keep up-to-date on new regulations proposed by VA.

If you are a VIP Member, I prepared a PDF (available on the VIP Downloads page) that shows you how to subscribe to Federal Register notices, proposed rules, and final rules. 

You also have the opportunity to comment on proposed rules. (Public comments make a difference.)

The Federal Register published a helpful guide, An Overview of Federal Regulations and the Rulemaking Process, which explains the rulemaking process undertaken by federal agencies such as the Department of Veterans Affairs. 

The section below, Why Does Congress Delegate Rulemaking Authority?, is copied from that guide.

Why Does Congress Delegate Rulemaking Authority?

Congress delegates rulemaking authority to agencies for a number of reasons.

Perhaps most importantly, agencies have a significant amount of expertise and can “fill in” technical details of programs that Congress created in statute. This can be useful for Congress, which is responsible for establishing policy in a wide range of issue areas and does not necessarily have the same depth of expertise that agencies may have.

In addition, even after delegating rulemaking authority to agencies, Congress retains its general legislative power, which gives it the ability to conduct oversight, modify or repeal regulations, and amend agencies’ underlying statutory authority.

As such, delegating authority to agencies can enable Congress to focus on “big picture” issues rather than spending its time and resources debating all the technical details required to fully implement a complex public policy.

Finally, by creating the federal rulemaking process, Congress instituted a number of procedural controls on agencies, such as ensuring that the public would have an opportunity for participation through the public comment process required by the Administrative Procedure Act (APA).

[line breaks and emphasis added]

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