Introduction, Statutory Identity, Origins, and Passage

Every system of veterans health care contains an allocation decision that is easy to state and difficult to govern. The Department of Veterans Affairs operated its own hospitals and clinics, employed its own clinicians, and carried a statutory duty to furnish care to enrolled veterans. Demand for that care, however, did not arrive evenly across geography or specialty, and departmental capacity did not expand or contract at the pace of individual need. A veteran living far from a departmental facility, or facing a long wait for an appointment at the nearest one, presented a practical problem that the existence of a public system alone did not solve. Private physicians and hospitals existed in the communities where veterans lived. The question was when the federal government should pay those outside providers, under what conditions, through which administrative machinery, and with what safeguards for coordination and quality. The VA MISSION Act of 2018 was the answer Congress gave to that question after four years of emergency improvisation, and the architecture of the statute cannot be understood apart from the scandal that forced the improvisation into being.

The scandal broke in Phoenix in the spring of 2014. Reporting and whistleblower accounts described a scheduling system at the Phoenix VA Health Care System in which the official record of waiting times bore little relation to the waits veterans actually endured. Schedulers recorded desired appointment dates in ways that made reported waits appear short, while veterans whose names appeared on unofficial lists waited far longer for primary care. The gap between the two records mattered for more than bookkeeping. Performance measurement inside the department rested on reported access, and reported access rested on the very entries that investigators later found to have been manipulated. A system that measured itself through falsified data could congratulate itself on timeliness while the patients inside the system experienced delay, and that inversion of evidence and experience supplied the scandal with its enduring force in the legislative debates that followed between 2014 and 2018.

The Office of Inspector General gave the allegations an official foundation in an interim report dated May 28, 2014. Investigators identified about 1,400 veterans in Phoenix who lacked a primary care appointment and were appropriately included on the official electronic wait list. Investigators identified about 1,700 additional veterans who were waiting for a primary care appointment and were absent from that official list altogether. The interim report substantiated that significant delays in access to care had negatively affected quality at the Phoenix system, described multiple scheduling practices that departed from Veterans Health Administration policy, and noted that the additional lists formed the basis for allegations about secret wait lists. Two days after the interim report appeared, on May 30, 2014, Secretary of Veterans Affairs Eric Shinseki resigned, and President Barack Obama accepted the resignation while describing systemic problems in the department as unacceptable.

Precision about the human cost of the Phoenix failures mattered in 2014 and matters to any honest account of the statute that eventually followed. Early public allegations held that as many as 40 veterans had died while waiting for care in Phoenix. The inspector general final report of August 26, 2014, produced a more guarded conclusion. The report documented substantial delays and quality concerns and identified six veterans who had died after experiencing clinically significant delays, while stating that investigators could not conclusively assert that the absence of timely quality care had caused those deaths. The distinction between a death after delay and a death caused by delay did not soften the institutional indictment. A department unable to say which veterans were waiting, unable to report waits truthfully, and unable to connect delay to outcome through reliable records had failed at the administrative level regardless of the causal findings in individual cases, and Congress legislated against that administrative failure as much as against any single clinical outcome.

Congress answered first with the temporary Veterans Choice Program created under the access law of 2014, enacted as part of the Veterans Access, Choice, and Accountability Act of 2014, Public Law 113-146, which President Obama signed on August 7, 2014. The Choice Program was a bridge built under pressure. Section 101 of the 2014 act authorized eligible veterans to receive care from providers outside the department, and section 802 deposited 10 billion dollars in mandatory funding into a Veterans Choice Fund. Eligibility turned substantially on two bright lines that were simple to administer and simple to criticize. A veteran could qualify after the department proved unable to schedule an appointment within 30 days of the clinically indicated date or the date the veteran preferred, and a veteran could qualify on the basis of residence more than 40 miles from the nearest departmental facility with a full time primary care physician. Other routes to eligibility addressed travel by air, boat, or ferry, residence in a state or territory without a full service departmental medical facility, and unusual or excessive burdens of travel.

The bridge metaphor explained both the virtues and the defects of the 2014 design. A temporary program with a fixed fund allowed Congress to move money toward outside care without first settling the permanent relationship between departmental care and purchased care. The same design guaranteed a return to the same questions under worse conditions, because demand for outside care would either exhaust the fund or require repeated extensions while the permanent question remained open. The original statute contemplated an end when the fund was exhausted or by August 7, 2017. Congress removed that date in Public Law 115-26 in 2017 and allowed the program to continue until the initial fund ran out. When the fund again approached exhaustion, the VA Choice and Quality Employment Act of 2017, Public Law 115-46, added 2.1 billion dollars, and Division D of Public Law 115-96 added a further 2.1 billion dollars later in 2017. Each appropriation purchased time rather than settlement, and each round of exhaustion talk strengthened the argument that purchased care had become a permanent feature of the system that lacked a permanent statutory home.

What question did the statute set out to answer?

The statute answered when the Department of Veterans Affairs should pay a private provider for a veteran’s care. Its answer moved the decision away from a single distance or waiting period test and toward a consolidated program in which eligibility, clinical need, availability, and quality were considered together under permanent authority.

The fuller answer requires attention to the fragmentation that the Choice Program had layered on top of an already divided structure. Purchased care in the department never rested on one authority before 2018. The Veterans Health Administration bought care in the community through the general contract care authority associated with section 1703 of title 38, through emergency care authorities at sections 1725 and 1728 of title 38, through sharing agreements for health care resources, and through specialized arrangements that included the pilot program known as Project ARCH, which extended enhanced contract care to veterans in highly rural areas. Each authority carried its own eligibility logic, its own contracting practice, and its own administrative habits at the facility level. The Choice Program then arrived as an additional channel beside those authorities rather than as a replacement for them. A veteran, a scheduler, and a community provider could confront several overlapping routes to the same outside appointment, with different paperwork and different payment expectations attached to each route. Consolidation therefore appealed to legislators as administrative reform independent of any position on the proper size of the departmental system itself.

The statute that performed the consolidation has a formal identity that rewards one clear statement. The VA MISSION Act of 2018 bore the long title of the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018. The acronym MISSION was formed from the operative words of the shorter title, Maintaining Internal Systems and Strengthening Integrated Outside Networks, a construction that announced the dual commitment in the text of the name itself. The measure became Public Law 115-182 after President Donald Trump signed it on June 6, 2018. Title I carried the subtitle Caring for Our Veterans, and section 101 amended title 38 to establish the Veterans Community Care Program at section 1703 of title 38, United States Code. That placement carried symbolic and practical weight. The new program did not float beside the older purchased care authorities as the Choice Program had done after 2014. The new program occupied the central statutory provision governing care through nondepartmental facilities, and the older patchwork was drawn toward a single permanent program with departmental coordination duties attached.

The names in the long title connected the statute to three congressional careers defined in part by military service. Senator John S. McCain III of Arizona had been a prisoner of war in Vietnam, and McCain had championed expanded access to private care in the years after the Phoenix failures in McCain’s home state. Senator Daniel K. Akaka of Hawaii had served during the Second World War and had chaired the Senate Committee on Veterans’ Affairs before retirement from the Senate in 2013; Akaka died in April 2018, weeks before final passage. Representative Samuel R. Johnson of Texas had been a prisoner of war in Vietnam alongside McCain. The naming decision, adopted when the House substituted its text into the Senate vehicle in May 2018, framed the statute as a product of a congressional generation for which veterans policy was personal biography as well as public business, and the framing fit a bill that moved through both chambers with lopsided bipartisan majorities.

The legislative push that produced the statute began in earnest during 2017, and the central Senate figure was Johnny Isakson of Georgia, chairman of the Senate Committee on Veterans’ Affairs. Isakson worked with Jon Tester of Montana, the ranking member of that committee, in a partnership that structured the Senate side of the effort from introduction through final concurrence. The principal Senate precursor was the Caring for Our Veterans Act of 2017, Senate bill 2193, introduced by Isakson and Tester to streamline and strengthen community care. The Senate Committee on Veterans’ Affairs approved that bill on November 29, 2017, by a vote of 14 to 1, and the committee report accompanied the measure as Senate Report 115-212. The full Senate took no final action on the bill before the first session of the 115th Congress closed, and the effort therefore entered 2018 with committee approval, bipartisan sponsorship at the top of the committee, and no enacted text.

The House side developed along a parallel track under Representative Phil Roe of Tennessee, chairman of the House Committee on Veterans’ Affairs. The House committee had advanced the VA Care in the Community Act, House bill 4242, and the VA Asset and Infrastructure Review Act of 2017, House bill 4243, the second of which addressed the evaluation and possible realignment of departmental facilities. The eventual statute combined material from the Senate community care bill with material from both House measures, which explained why the final law reached beyond community care into infrastructure review, hiring and retention of clinicians, telehealth practice across state lines, opioid prescribing coordination with community providers, and expansion of the Program of Comprehensive Assistance for Family Caregivers to veterans of all eras. Community care supplied the core of the statute and the reason for its deadline pressure, while the additional titles gave members in both chambers provisions that addressed the internal capacity of the department alongside the outside network named in the title.

Deadline pressure in the spring of 2018 was concrete rather than rhetorical. The Choice Program depended on a fund that Congress had replenished twice during 2017, and departmental leadership warned that the replenished money had a short horizon. Acting Secretary Robert Wilkie, who had taken the acting role after President Trump removed Secretary David Shulkin in March 2018 and whose nomination to the permanent post the president announced in May 2018, stated on May 8, 2018, that funding for the Choice Program was set to run out as early as May 31, 2018, and that veterans were counting on passage by Memorial Day. A permanent program enacted against a funding cliff acquired a legislative momentum that a freestanding reform bill lacked. Opponents of particular provisions faced the argument that delay risked an interruption in outside care for veterans already using the temporary program, and proponents in both parties used the calendar as an argument for accepting a negotiated package rather than reopening settled compromises.

The negotiated package also carried a bridge appropriation inside the permanent reform. Senate summaries of the bill recorded 5.2 billion dollars for the Veterans Choice Fund, an amount intended to sustain the temporary program until the Veterans Community Care Program stood up in its place. The appropriation illustrated the sequencing problem that ran through the entire statute. Congress could repeal or supersede the temporary structure on paper in a single vote, but appointments already authorized, providers already treating veterans, and claims already moving through payment channels could not change systems on the date of signature. The statute therefore paired permanent authority with transitional money, and the pairing distinguished the 2018 law from the 2014 law in one important respect. The 2014 law had created a temporary program and left permanence for later. The 2018 law created the permanent program and left only the transition for later, financed in advance.

Debate over the package divided along a line that had formed during the Choice years. A coalition of 38 veteran and military advocacy organizations wrote to the House and the Senate in support of the bill, and organizations in that coalition, including the Veterans of Foreign Wars and Disabled American Veterans, presented the measure as a balance between a strengthened departmental system and access to community providers when departmental care could not meet a veteran’s need in a timely or practical way. The American Federation of Government Employees, which represented departmental employees, condemned passage in a statement dated May 25, 2018, and characterized the statute as a dangerous step toward privatization that relieved Congress of responsibility for the departmental system. The AFL-CIO expressed opposition in a letter dated May 21, 2018, objecting to expanded private care authority and to the infrastructure commission modeled in part on base realignment practice. The disagreement concerned trajectory rather than immediate mechanics. Named supporters treated community care as a supplement inside a public system. Named opponents treated expanded community care as a mechanism that would draw resources and patients away from that system over time. The statutory text, with its paired commitments to internal systems and outside networks, supplied each side with language for its position.

The passage sequence in May 2018 moved with unusual speed once the combined text appeared. Chairman Roe introduced the VA MISSION Act as House bill 5674 on May 3, 2018, and the bill was referred to the House Committee on Veterans’ Affairs and additionally to the Committee on Rules. The Veterans’ Affairs Committee held its markup on May 8, 2018, and ordered the bill reported by a vote of 20 to 2. The committee filed its report on May 11, 2018, as House Report 115-671, Part 1, and the Rules Committee was discharged from further consideration. Five days separated report and floor action. On May 16, 2018, the House passed the measure by a recorded vote of 347 to 70, recorded as Roll Number 189. The House accomplished passage through a procedural vehicle that requires attention, because the text of House bill 5674 was substituted as an amendment to Senate bill 2372, a Senate measure that had passed the Senate by unanimous consent on March 1, 2018, in an unrelated form concerning burial receptacles for remains in national cemeteries. Substitution into a bill that had already cleared one chamber allowed the combined text to travel as a House amendment to a Senate bill, a route that shortened the path to final action in the closing days before Memorial Day.

The Senate received the House amendment and began consideration on May 17, 2018. Procedural votes preceded the decisive one. On May 22, 2018, the Senate invoked cloture on the motion to concur in the House amendment by a vote of 91 to 4, recorded as Record Vote Number 104, a margin that foreclosed any realistic prospect of defeat on the merits. On May 23, 2018, the Senate agreed to the House amendment by a vote of 92 to 5, recorded as Record Vote Number 106, and the measure cleared Congress one week after House passage. The enrolled bill was presented to the president on June 5, 2018. President Trump signed the bill on June 6, 2018, and the measure became Public Law 115-182 on that date. The signing completed a legislative arc of four years, from the interim inspector general report of May 2014 through two emergency funding extensions in 2017 and a committee process that spanned the autumn of 2017 and the spring of 2018, and the speed of the final three weeks contrasted with the long gestation that had preceded the combined text.

The meaning of the statute at the moment of enactment rested on the contrast between the question of 2014 and the question of 2018. The question of 2014 had been one of rescue. A department that had concealed the length of its own waiting lists required an emergency channel through which veterans could reach care outside the system that had failed to schedule them, and Congress built that channel with a fixed fund and simple distance and waiting period tests. The question of 2018 was one of governance. Purchased care had grown from an exception into a standing component of veterans health care, used by large numbers of veterans and financed by repeated congressional action, and a standing component required standing law. The Veterans Community Care Program at section 1703 of title 38 supplied that standing law, consolidating seven community care programs into one streamlined program, removing the fixed 30 day and 40 mile tests as the governing barriers to community care, and assigning the department duties of coordination, timely scheduling, and continuity for veterans treated by outside providers. Whether that settlement strengthened the departmental system or weakened the departmental system over time divided named observers in 2018, as the statements of the supporting veterans organizations and the opposing employee federation demonstrated. The statute itself answered the narrower institutional question without ambiguity. After June 6, 2018, the decision about when a veteran received care from a private provider at public expense rested on permanent authority administered through a single program, rather than on a temporary fund and a patchwork of older authorities that the emergency of 2014 had exposed as inadequate to the demand placed upon them.

The Consolidation of Community Care

The most consequential structural work in the statute was also the least visible. Title I did not merely adjust who qualified for care outside a Department of Veterans Affairs facility, or how long a veteran could be made to wait before an outside referral became permissible. Section 101 rewrote section 1703 of title 38 of the United States Code and placed a permanent Veterans Community Care Program in the space occupied by a collection of separate purchasing arrangements that had accumulated over decades. The result, by the spring of 2018, was a department that purchased a large share of its medical care in the community without possessing a single program through which that purchasing occurred. The MISSION Act treated that fragmentation itself as the defect to be corrected.

Summaries prepared for the House and the Senate during consideration of the legislation described the change in identical arithmetic terms. The act consolidated seven separate community care programs into one program. That count of seven was the figure Congress used to explain the reform to itself and to the public, and the figure deserves to be taken seriously as a statement about scale rather than as a precise inventory. The authorities folded toward the new program were not seven copies of the same instrument. Some were statutes. Some were programs built by the department under general statutory authority. Some were contracts that functioned as programs in practice because veterans experienced them as the route through which care arrived. A consolidation that joined instruments of different legal character was harder to draft than a consolidation of identical parts, and the difficulty explains part of the transition machinery elsewhere in the statute, including the sunset provision for the Choice Program and the bridge appropriation that kept the older system funded while the replacement was built.

The largest and most politically prominent component was the Veterans Choice Program, created by the Veterans Access, Choice, and Accountability Act of 2014 and placed in operation in November 2014. Choice had been a response to a crisis of access inside department facilities, and the program carried eligibility rules built around distance and waiting time that belonged to that crisis. A veteran who lived beyond a stated distance from a department facility, or who faced a stated wait for an appointment, could seek care from a community provider at department expense. By 2018, Choice functioned as the public face of community care even though a substantial share of purchased care reached veterans through entirely different channels.

Beneath Choice sat the older contract care authority that section 1703 itself had long supplied. Before the 2018 rewrite, section 1703 authorized the Secretary to contract for hospital care and medical services in nondepartment facilities when department facilities were not capable of furnishing the care required, or when geography made department care impracticable. Eligibility under the older authority turned on feasibility and on the judgment of the local facility, and the machinery was correspondingly local. An authorization generated at one medical center, under one reading of feasibility, could differ in form and in payment practice from an authorization generated at another center for a clinically similar case. The 2018 act did not discard the function that the older section 1703 performed. The act rewrote the very section that had housed the older authority and made that section the home of the consolidated program, so the statutory address survived while the fragmented practice that the address had supported was replaced.

Two regional contract programs illustrated a different route to the same fragmentation. Patient Centered Community Care, known by the abbreviation PC3, began with contracts awarded in September 2013 to two third party administrators charged with building regional networks of community providers. The program reached full implementation in April 2014 and delivered specialty care, mental health care, limited emergency care, and maternity and limited newborn care when a department facility could not feasibly provide the service. PC3 was a program the department created under existing statutory authorities rather than a program designed in detail by a statute of its own, and eligibility for PC3 care rested on the same criteria that governed individually authorized care. Project ARCH, short for Access Received Closer to Home, occupied a narrower and more experimental place in the system. Section 403 of Public Law 110 387, enacted in 2008, required a pilot program of enhanced contract care for veterans in highly rural areas, and ARCH tested whether contracted community providers could close distance gaps that department facilities could not close on their own.

Emergency care added another layer of separate authority. Section 1725 of title 38 governed reimbursement for emergency treatment of nonservice connected conditions, a line of authority that traced to legislation enacted in 1999, while section 1728 governed emergency care connected to service connected conditions. The two authorities carried distinct eligibility conditions, distinct filing expectations, and a shared threshold question about whether a department or other federal facility had been feasibly available at the moment of emergency. The existence of two emergency authorities alongside the scheduled care authorities meant that the department paid community providers under rules that varied not only by place and by program but also by the legal characterization of the condition treated and by the sequence in which care and paperwork occurred.

Other purchasing routes completed the patchwork that department witnesses described to Congress during the consolidation debate that preceded the statute. Sharing agreements under sections 8111 and 8153 of title 38 allowed the department to obtain care through other federal providers, including the Department of Defense and the Indian Health Service, and through institutions affiliated with the department, including university medical centers and affiliated practice groups. Sloan Gibson, serving as Deputy Secretary of Veterans Affairs, told the Senate Committee on Veterans Affairs in December 2015 that the department was working with an array that combined Choice, the PC3 networks, Project ARCH, two department paid emergency care arrangements, affiliations with other federal agencies and academic partners, and numerous individual agreements between department facilities and community providers. The Government Accountability Office, in a report issued in June 2018 on the Choice Program, catalogued a similar set of components and reached a compatible picture of a system whose parts had been added at different times for different reasons. Against that record, the statutory count of seven is best understood as the count Congress adopted for the principal community care programs subject to consolidation, rather than as an exhaustive census of every purchasing instrument the department possessed. No reliable source consulted for the drafting of the statute produced a single canonical enumeration that maps the number seven onto seven named authorities without remainder, and the honest statement of the reform is that seven programs were consolidated, with Choice, PC3, Project ARCH, individually authorized contract care, the emergency care authorities, dialysis contracting, and the sharing and affiliation agreements forming the documented components from which the consolidated program was assembled.

What did consolidation change in practice?

Consolidation replaced seven separate community care authorities with one program governed by one set of eligibility criteria, one referral and authorization pathway, and one claims relationship with community providers, administered through a single program office under section 1703 of title 38 of the United States Code.

The practical meaning of a single set of eligibility criteria can be stated by contrast with the arrangement that preceded consolidation. Under the older authorities, the first question in a purchased care case was often not a clinical question at all. Staff had to determine which authority a case belonged under before the merits of the case could be addressed. A veteran who lived far from a department facility might be tested against the distance and wait standards of Choice. A veteran whose local facility lacked a service might be tested against the feasibility standard that supported individually authorized care or a PC3 referral. A veteran treated in a community emergency room faced the prudent layperson standard and the feasibility inquiry embedded in sections 1725 and 1728, together with filing rules that differed between the two sections. Each test was written for the program that contained it, and no test was written with the other tests in view. The consolidated program at section 1703 substituted one statutory list of conditions under which care was required to be furnished through nondepartment providers, supplemented by a category for cases in which the Secretary and the veteran agreed that community care served the best medical interest of the veteran. One list did not eliminate judgment from individual cases. One list did eliminate the preliminary sorting exercise that had consumed staff time and produced inconsistent outcomes before judgment was ever exercised.

A single referral and authorization pathway carried the same logic into the daily work of facilities. Under the fragmented arrangement, the route from a clinical decision to an approved community appointment depended on the program selected at the sorting stage. Choice referrals moved through administrator contracts that had their own scheduling practices and communication failures, failures that the Government Accountability Office documented in the June 2018 report in connection with appointment timeliness and coordination between the department and its administrators. PC3 referrals moved through regional networks assembled under different contracts. Individually authorized care depended on local staff assembling an arrangement with a provider willing to accept department payment, facility by facility and case by case. Consolidation directed those movements into one pathway anchored in the department, under which a determination of eligibility under section 1703 led to a referral, an authorization, and an appointment through the networks and agreements that supported the single program. The department scheduled the June 6, 2019 termination of the Choice Program under section 143 of the act to coincide with the operation of the replacement program, and section 101 tied the effectiveness of the new program to the publication of implementing regulations or to the exhaustion of three quarters of the amounts deposited in the Veterans Choice Fund.

A single claims and payment relationship addressed the side of purchased care that community providers experienced directly. A provider treating veterans under several of the older arrangements could face different reimbursement methods, different payment routes, and different administrative counterparts depending on the authority under which a given episode of care had been authorized. Late or disputed payment under one program discouraged participation in others, because a provider formed a judgment about doing business with the department as a whole rather than about a single program office. The statute answered that problem in part through structure and in part through standards. Structure placed payment for community care inside the one program, so a provider dealt with one purchaser operating under one set of program rules. Standards appeared in provisions of the act that required prompt payment practices and that aligned the cost borne by a veteran for community care with the cost that would have applied to department care, so the financial terms of an episode did not shift with the administrative label attached to the authorization.

A single program office completed the structural change on the department side. Parallel programs generate parallel management. Each of the older arrangements required staff attention to contracts, to eligibility disputes, to provider relations, and to reporting, and the attention was divided among offices and contract structures that did not share a common view of the whole. The Office of Community Care existed within the Veterans Health Administration before the MISSION Act and administered multiple community care programs, yet administration of multiple programs under one office roof did not produce one program, because the statutory authorities, funding routes, and contract vehicles underneath the office remained distinct. Consolidation gave the office a single statutory program to administer. Accountability followed the same line as administration. When Congress asked why a category of community care was performing badly after consolidation, the question ran to one program with one set of criteria and one budget presentation, rather than dispersing across a set of authorities whose boundaries could absorb responsibility. The comparison with other large public purchasing arrangements is instructive, because a public program that pays private providers under one statutory framework demonstrates how much administrative behavior follows from the decision to house purchasing in a single structure with unified rules for eligibility, provider participation, and payment, rather than in a set of parallel structures that share a purpose but not a rulebook.

The funding relationship inside the consolidated program requires arithmetic rather than adjectives. Community care and direct department care competed within the department medical care budget, even though the account structure was divided. A separate Medical Community Care account had existed from fiscal year 2017 alongside the medical services appropriation that funded direct care, and the fiscal year 2019 budget request of Secretary Shulkin proposed merging the two accounts. Divided accounts did not repeal the arithmetic of a finite total. Every dollar obligated to pay a community provider for an episode of care was a dollar that, within the total Congress provided for department medical care, was unavailable to pay the clinician, the supply account, or the facility cost that direct department care required. Growth in purchased care therefore constrained direct care not through any policy preference stated in the statute but through the arithmetic of that finite total. A department that authorized more community episodes in a given year, at prices set by community markets and by the payment standards the statute prescribed, held less within that total for the department facilities whose fixed costs continued whether patient volume rose or fell. Congress understood the identity during debate on the act, and concern that community care growth could hollow out department capacity appeared in the record alongside support for wider access, with the two positions disagreeing about desirable volume rather than about the arithmetic itself.

The act carried its own bridge across the transition in section 510, and the placement of the bridge funding reveals how Congress expected the changeover to proceed. Section 510 authorized and appropriated 5.2 billion dollars, deposited in the Veterans Choice Fund established under section 802 of the Veterans Access, Choice, and Accountability Act of 2014, and made the amount available for obligation or expenditure without fiscal year limitation. The reason for a bridge of that size and character was stated plainly in the legislative summaries of 2018. Department officials warned during the spring of 2018 that Choice funding could be exhausted around the end of May 2018, before a successor program could be enacted and built. The 5.2 billion dollars kept the expiring program solvent for the interval between enactment on June 6, 2018 and the scheduled operation of the consolidated program one year later, so veterans in the middle of episodes of community care did not face a funding lapse caused by the calendar of reform itself.

Why an administrative reform of that character mattered more to veterans than any single eligibility expansion in the statute can be seen in the experience that the fragmented system produced at the level of an individual case. Eligibility expansions change the answer for a veteran near a threshold. A distance standard shortened, a wait standard tightened, or a new category added each move a boundary and admit veterans who stood outside the boundary before the change. Administrative consolidation changes the reliability of the answer for every veteran inside any boundary. Under the older authorities, identical clinical situations produced different answers depending on which authority a facility invoked. Two veterans with the same condition, the same distance from department care, and the same local capacity gap could receive different decisions because one case was processed as a Choice case and the other as an individually authorized case, or because one facility read feasibility generously and another read feasibility narrowly, or because a claim that satisfied one emergency authority failed the filing expectations of the other. The veteran at the receiving end of that variation experienced the variation as arbitrariness, even when each individual decision could be defended under the authority that produced it. A system in which the rule invoked determines the result places the burden of internal organization on the person the system serves.

Consolidation attacked that burden directly. One set of criteria meant that the answer to a request for community care depended on the facts of the case measured against a single list, and a veteran transferred between facilities or between regions carried the same governing test along the way. One pathway meant that a community provider deciding whether to treat veterans faced one authorization practice and one payment practice, which increased the willingness of providers to remain in the networks on which access depended. One program office meant that a failure in the pathway had an identifiable owner inside the department, and a correction issued for the program applied to the program as a whole rather than to one authority among several. The statute dated May 1, 2019 stood one month before the scheduled June 6, 2019 start of consolidated operation, and the measure of the reform at that date was prospective in a specific sense. The fragmented past was documented in reports, testimony, and appropriations history. The consolidated future had a statutory address, a single set of criteria, a funded bridge behind the transition, and a termination date for the largest of the programs being replaced. Between those two states of affairs lay the entire practical content of consolidation, a change in machinery that determined whether every other promise in the statute about access and choice would be delivered through one door or through seven.

The Six Eligibility Criteria for Community Care

Eligibility under the Veterans Community Care Program begins with a threshold question. Section 1703 of title 38 defines a covered veteran as a veteran enrolled in the system of annual patient enrollment established under section 1705, or a veteran who is not enrolled in that system but is otherwise entitled to hospital care, medical services, or extended care services under the enrollment statute. A veteran outside that definition does not reach the criteria at all, however pressing the medical need or however distant the nearest facility. Each criterion then answers a narrower question: given a covered veteran who requires a defined item of hospital care, a medical service, or an extended care service, under what conditions must or may the Department of Veterans Affairs furnish that care through a provider outside the Department rather than inside a Department facility.

The six criteria are alternatives, not cumulative conditions. Satisfaction of any one is enough. The statute nevertheless treats the six differently. The first five appear in subsection (d) of section 1703, under a heading describing conditions under which care is required to be furnished through non-Department providers. For those five, the operative verb is mandatory: the Secretary shall furnish the care, subject to the availability of appropriations, once a condition is met. The sixth appears separately in subsection (e), under a heading describing conditions under which care is authorized to be furnished. For that criterion, the operative verb is permissive: the Secretary may furnish the care. For the first, second, third, and fourth criteria, subsection (d) provides that the decision to receive care from a specified provider rests at the election of the veteran, so eligibility creates an option rather than a transfer. The fifth criterion builds the veteran into the test itself, through agreement with the referring clinician, and the sixth likewise leaves the decision to the veteran when the Secretary exercises the authority it grants.

The program replaced the arrangements the Veterans Access, Choice, and Accountability Act of 2014 had assembled on a temporary footing. The Choice Program turned principally on two mechanical tests: residence more than forty miles from a Department facility, measured under rules Congress amended in 2015 to use driving distance, and inability to schedule an appointment within the wait time goals of the Veterans Health Administration. The MISSION Act consolidated purchased care into a permanent program and rewrote the gateway. Distance survived in transformed forms: as a grandfathered protection, as one element inside the access standards, and as one consideration inside the best medical interest test.

Does Meeting One Criterion Guarantee Community Care Without Prior Approval?

No. Meeting one criterion establishes eligibility to elect community care, but section 1703 permits a covered veteran to receive care under the program only upon authorization by the Secretary, after a determination, referral, and scheduling process coordinated by the Department for a defined episode of care.

That answer frames everything that follows. The criteria determine whether the door to community care opens; authorization determines whether a specific appointment, with a specific provider, for a specific service, is covered. The distinction corrects a persistent misunderstanding from the Choice Program era, when possession of a Choice Card was widely mistaken for a general entitlement to obtain private care and present the bill afterward. The statute contains no such self-executing benefit. A veteran who books an outside appointment without Department authorization, on the strength of a personal assessment that a criterion is satisfied, has obtained care outside the program rather than care under it.

The first criterion is the simplest in form: the Department does not offer the care or services the veteran requires. The trigger is categorical absence. The required service is not part of what the Department offers, so no question of distance, waiting, or quality arises, because no Department offering exists against which those questions could be measured. Department guidance issued in April 2019 illustrated the criterion with maternity care, a service the Department did not provide in house at its medical facilities, so that a veteran requiring maternity care qualified on that ground alone. The determining actor is the Department itself, acting on its own catalog of services; the facility or the Department centrally establishes that the service is not offered, and the veteran is not required to prove a negative beyond identifying the required care and seeking it through the Department. The care authorized is the missing service itself, furnished by a specified provider in the community, and the scope follows the requirement that triggered eligibility rather than extending to unrelated care.

The first criterion differs from the Choice test it replaced in a consequential way. Choice eligibility was framed around the veteran and the nearest facility: distance from a facility, or delay at a facility. A service the Department did not offer anywhere strained that frame, because the nearest facility might sit five miles away and operate efficiently while lacking the required service entirely. The MISSION Act text asks the cleaner question directly: the unit of analysis is the care or service required, not the geography of the veteran.

The second criterion turns from the service to the map: the Department does not operate a full-service medical facility in the state in which the covered veteran resides. The trigger is residence in a state or territory without such a facility, and the determination is institutional rather than clinical: no clinician examines the veteran, and no appointment is requested and refused. The Department knows which states contain a full-service facility under its own operation and which do not, and residence in a state of the second kind satisfies the criterion. Department guidance issued in April 2019 identified the affected places as Alaska, Hawaii, and New Hampshire, together with the territories of Guam, American Samoa, the Northern Mariana Islands, and the United States Virgin Islands. The premise is that the Department has not built the complete institutional presence in that state on which direct delivery ordinarily depends. The criterion also authorizes the widest election of the first four, because it attaches to the veteran and the state of residence rather than to a single missing service.

Against the Choice Program, the resemblance is close but the formulation changed. The 2014 Act had defined the analogous ground by components, asking whether a state lacked a Department medical facility providing hospital care, emergency medical services, and surgical care rated at a standard complexity, with an additional distance condition layered into the provision. The MISSION Act compressed that component test into the single concept of a full-service medical facility, simplifying administration at the cost of leaving the content of full service to the Department operating the facilities in question.

The third criterion is the grandfather provision, the only criterion defined entirely by reference to a repealed program and a fixed date. Its function is transitional protection: a veteran who had arranged life and care around the Choice Program distance rule was not to lose community eligibility on enactment day when the MISSION Act replaced that rule with a different access framework. The statute preserves eligibility for a defined class drawn with unusual precision, and each element must be established.

The first element fixes the status at a moment in time. The veteran must have been an eligible veteran under section 101(b)(2)(B) of the Veterans Access, Choice, and Accountability Act of 2014 as of the day before the date of enactment of the Caring for Our Veterans Act of 2018. That act formed the opening title of the MISSION Act, and the MISSION Act was enacted on June 6, 2018, so the anchor date is June 5, 2018. The paragraph incorporated by reference was the Choice Program distance provision: residence more than forty miles from the relevant Department medical facility, calculated under the Choice rules. A veteran who first crossed the forty-mile line after June 5, 2018 acquired no grandfathered status, and a veteran who satisfied a different Choice ground, such as excessive wait time, without satisfying the distance paragraph likewise falls outside the incorporation, because the cross-reference reaches the distance paragraph specifically.

The second element is continuity of geography. The veteran must continue to reside in a location that would qualify the veteran for eligibility under the incorporated Choice provision. Residence is tested twice: once at the anchor date, under the historical record, and again at the time community care is sought, under a hypothetical application of the repealed distance rule to the place of residence at that later time. A veteran who moved closer to a Department facility after June 2018, into a location that would not have qualified under the forty-mile rule, fails the continuity element even though the anchor element is satisfied.

The third element divides the class by population density and recency of use. A veteran who resides in one of the five states with the lowest population density, as determined by data from the 2010 decennial census, satisfies the element on residence alone. Department regulation identified those states as Alaska, Montana, North Dakota, South Dakota, and Wyoming. For that group, the protection has no built-in expiration in the statutory text: a veteran who held distance eligibility on June 5, 2018 and continues to reside in a qualifying location in a lowest-density state retains the criterion for as long as those conditions hold. A veteran outside those five states faces two further temporal conditions: receipt of care or services under title 38 in the year preceding enactment, and seeking care or services within two years of enactment. Applied to the June 6, 2018 enactment date, the first window covers receipt of care between June 6, 2017, and June 6, 2018, and the second requires the care to be sought before June 6, 2020. The logic is reliance based: outside the most rural states, Congress protected veterans who had actually used the system during the final Choice year and who sought care during a two-year transition, rather than preserving a dormant eligibility indefinitely.

Who determines grandfather status follows from its character. The determination is administrative and documentary: the Department holds the records establishing Choice eligibility at the anchor date and receipt of care during the lookback year, and facility staff apply the residence and density elements to the address of record. No clinical judgment enters the analysis. The care authorized is the care the veteran requires within the covered categories, at the election of the veteran. The contrast with the Choice test is the sharpest of any criterion, because the third criterion does not replace the forty-mile rule with a better rule: the provision preserves the forty-mile rule as a protected historical fact for a defined population, while the fourth criterion supplies the forward-looking test for everyone else.

The fourth criterion applies when the covered veteran has contacted the Department to request care or services and the Department is not able to furnish such care or services in a manner that complies with the designated access standards developed by the Secretary under section 1703B. The criterion is triggered by a request, so measurement begins from an identified veteran seeking identified care, not from a general audit of Department capacity. The failure is specific, directing attention to the particular appointment offered for the particular service required, rather than to average performance across a facility. And the standards are delegated: the Secretary develops them under the companion provision, section 1703B, elaborated by regulation, so section 1703 supplies the legal consequence while the companion provision supplies the metric.

The standards operate on two axes, drive time and wait time, and a fuller treatment of the figures appears elsewhere in this article. In outline, the drive time component measures average driving time from the residence of the veteran to the Department facility that would furnish the care, and the wait time component measures the interval between the request and the appointment the Department can offer. Each axis is calibrated by type of care, with primary care, mental health care, and noninstitutional extended care services treated under one calibration and specialty care under another. Breach on either axis satisfies the criterion; compliance requires satisfaction of both. The veteran may agree, in consultation with a Department health care provider, to accept a longer drive or a later appointment, and such agreement removes the breach as applied to that request. Determination belongs principally to the Department as scheduler: facility staff test the available appointment against the standards at the moment of the request. No clinical agreement of the kind the fifth criterion requires is necessary, and the care authorized is the requested care for the episode the Department could not schedule within the standards.

Against the Choice Program, the fourth criterion is the direct successor to the wait time prong and the partial successor to the forty-mile prong, and the succession involved redesign rather than continuation. Choice measured distance in miles to the nearest facility and delay against the wait time goals of the Veterans Health Administration, a framework centered in practice on thirty days. The MISSION Act framework substitutes average drive time for raw mileage, with real consequences in terrain where forty miles of interstate and fifteen miles of mountain road impose opposite burdens, and differentiates wait time by category of care instead of applying one goal across services. The grandfather criterion exists precisely because the redesign changed the unit of measurement.

What Does the Best Medical Interest Criterion Add Beyond the Mechanical Tests?

The criterion adds individualized clinical judgment. Where distance, wait time, and service availability produce a result that fits the rules but harms a particular patient, the referring clinician and the veteran may together find that community care better serves treatment, considering burden, frequency, timeliness, and the nature of the care required.

The fifth criterion applies when the covered veteran and the referring clinician agree that furnishing care and services through a non-Department entity or provider would be in the best medical interest of the covered veteran, based upon criteria developed by the Secretary. The decision makers are two, and both must agree: the clinician alone cannot send the veteran out over objection, and the veteran alone cannot invoke the criterion as a preference for a community provider. The judgment is medical rather than administrative, and structured rather than free-form, because the agreement must rest on criteria the Secretary develops, and the statute directs what those criteria must include.

Congress specified the floor of the Secretary criteria in subsection (d)(2). The criteria must include consideration of the distance between the veteran and the facility providing the needed care; the nature of the care required; the frequency with which the care needs to be furnished; the timeliness of available appointments; and whether the veteran faces an unusual or excessive burden in accessing care from the Department facility where the care is sought. The burden inquiry unpacks further: whether the veteran faces an excessive driving distance, a geographical challenge, or an environmental factor impeding access; whether the care is provided by a Department facility reasonably accessible to the veteran; whether a medical condition affects the ability to travel; whether a compelling reason, as determined by the Secretary, requires care from a facility other than a Department facility; and such other considerations as the Secretary considers appropriate.

What the fifth criterion does, and what no mechanical criterion can do, is integrate those factors for a single patient whose case defeats categorical rules in combination rather than on any single axis. A veteran might live within the drive time standard and face a wait within the wait time standard, yet require treatment at a frequency that converts a compliant drive into a punishing regimen; the access test examines one appointment, while the burden accumulates across dozens. A veteran whose medical condition makes travel itself harmful may live close to a facility by every geographic measure; the condition factor captures that case. The fifth criterion is the statute acknowledgment that access is a clinical fact before it is a geographic one. The criterion also differs from its Choice antecedent in placement: the 2014 Act recognized unusual or excessive burden as an exception inside a distance provision applied through Department determination, whereas the MISSION Act detached the burden inquiry from the mileage frame, generalized it into one factor among several, and relocated the decision to the veteran and the referring clinician acting in agreement. The care authorized is the care that prompted the referral, and the Department referral converts the agreement into a scheduled, covered episode with records coordination attached.

The sixth criterion addresses failure of a different kind: not absence, not distance, not delay in a single case, but a Department medical service line that does not meet the standards the Department sets for itself. Subsection (e) provides that the Secretary may furnish hospital care, medical services, and extended care services through a specified provider to a covered veteran served by a medical service line of the Department that the Secretary has determined is not providing care that complies with the standards for quality the Secretary shall establish under section 1703C. The unit of analysis is the medical service line at a facility, an organized clinical service within a medical center, rather than the facility as a whole or an individual practitioner. A facility might contain service lines meeting the standards alongside a line that does not, and the authority attaches only to veterans served by the deficient line and only for the care that line would furnish.

The comparison mechanism is prescribed and runs in two directions. The Secretary must measure timeliness of the service line at a facility by comparing that line with the same medical service line at different Department facilities, an internal comparison identifying a line lagging behind peers delivering the same service inside the same system. The Secretary must also measure quality at the service line by comparing that line with two or more distinct and appropriate quality measures at non-Department medical service lines, an external comparison testing the line against community performance rather than the Department internal distribution alone. Designation of the standards under section 1703C, measurement under the standards, and the determination of noncompliance all rest with the Secretary, exercised centrally rather than by the veteran, the referring clinician, or the facility whose line is in question.

Congress surrounded the authority with limits confirming its character as a remediation tool rather than a general exit from Department care. The Secretary may not at the same time furnish care under the subsection for more than three medical service lines at any one Department facility, or more than thirty-six nationally, and may limit the care available by length of time, location, and clinical services. Care authorized for a service line ceases when the remediation described in section 1706A for that line is complete, with continuity protection through completion of an episode already underway. At least once each year, the Secretary must publish in the Federal Register, and take reasonable steps to notify affected veterans directly, the time period, locations, and clinical services available under the subsection. The Choice Program contained no equivalent: Choice eligibility never asked whether a Department service line met quality standards. The sixth criterion thus introduced quality as an independent ground, and created the only criterion under which community care functions as a remedy for institutional performance and as pressure toward remediation, since the authority expires when the line is repaired.

Eligibility, under any criterion, sets in motion a sequence that corrects the recurring error that community care under the program is care available on request. The sequence begins with contact and determination: the veteran requests care, generally through the Department facility, and Department staff, or in the best medical interest case the veteran and the referring clinician together, determine whether a criterion is met. Before authorization, the veteran must supply information the program requires, including information on any other health plan coverage. Only after the determination does the Department issue the authorization that section 1703(a)(3) makes a precondition of receipt: a covered veteran may only receive care or services under the section upon authorization by the Secretary. Referral and scheduling follow. Section 1703(a)(2) obliges the Secretary to coordinate the furnishing of care, including ensuring timely scheduling of appointments, establishing a mechanism to receive medical records from non-Department providers, ensuring continuity of care, and coordinating among regional networks. The Secretary is responsible, to the extent practicable, for scheduling appointments under the program, and must ensure, to the extent practicable, that veterans can make their own appointments using advanced technology. Self-scheduling under that provision is a convenience inside an authorized referral, not a substitute for the referral.

Scope is the final element. An authorization covers the care that grounded eligibility, furnished by a provider specified in subsection (c), a category reaching Medicare participating providers, the Department of Defense, the Indian Health Service, federally qualified health centers, and other providers meeting criteria established by the Secretary. Care beyond the authorized episode, or a different service from a different provider obtained without a further determination, sits outside the authorization and outside the program payment commitment. Eligibility answers whether community care may be furnished at Department expense; authorization, referral, and scheduling answer when, where, from whom, and for what. A veteran holds the first answer as an election. The second set of answers the Department must issue before the care begins.

Eligibility route	What triggers it	Who determines it	What care it authorizes
Service not offered	The Department does not offer the care or service the veteran requires	The Department, acting on its own catalog of services	The missing service itself, furnished by a specified community provider
No full-service facility in the state	The veteran resides in a state or territory where the Department operates no full-service medical facility	The Department, on institutional and residence facts	Covered care the veteran requires, at the election of the veteran
Grandfathered distance eligibility	Distance eligibility under the Choice Program held on June 5, 2018, with continuing residence in a qualifying location and any conditions on recency of use met	The Department, on documentary and residence records	The care the veteran requires within the covered categories, at the election of the veteran
Access standards not met	The Department cannot furnish the requested care within the designated drive time and wait time standards	The Department, as scheduler, at the moment of the request	The requested care for the episode the Department could not schedule within the standards
Best medical interest	The veteran and the referring clinician agree that community care serves the best medical interest of the veteran under criteria developed by the Secretary	The veteran and the referring clinician, acting in agreement	The care that prompted the referral, as a scheduled and covered episode
Service line failing quality standards	A Department medical service line does not comply with the quality standards established under section 1703C	The Secretary, through designation, measurement, and determination of noncompliance	Care from the deficient service line, furnished by a specified provider until remediation is complete

Standards Instead of Numbers

The eligibility architecture that the VA MISSION Act of 2018 replaced had been built around two tests, and the simplicity of those tests was both the attraction and the defect of the arrangement. Under the Veterans Choice Program, created by the Veterans Access, Choice, and Accountability Act of 2014, a veteran enrolled in department health care became eligible to seek care from a community provider in defined circumstances, and two of the most consequential circumstances were expressed as single figures fixed in statute. The first figure concerned waiting. A veteran qualified on the waiting ground when the local facility reported an inability to schedule an appointment within thirty days of the date a physician determined that care was needed, or within thirty days of the date the veteran wished to be seen when no clinically indicated date had been specified. The second figure concerned distance. A veteran qualified on the distance ground when the veteran lived more than forty miles of driving distance from the closest department medical facility with a full time primary care physician. Additional grounds involved travel by air, boat, or ferry, unusual or excessive travel burden, and residence in a state or territory without a full service department medical facility, but the thirty day wait test and the forty mile distance test supplied the program with its recognizable public identity.

The defect lay in the uniformity of application. A single waiting figure governed a routine primary care appointment and a specialist referral alike, although the clinical meaning of a wait differs sharply between the two encounters. A delay of three weeks before a routine examination for a stable condition, before a first mental health appointment after a referral, and before a cardiology or orthopedics consultation does not present the same risk or the same claim on scheduling priority, and a statute that treats the three delays as interchangeable measures access by arithmetic rather than by clinical judgment. The distance figure presented a parallel problem in geographic form. Forty miles describes a short highway journey in one part of the country and a prolonged journey over mountain roads, congested urban corridors, or water crossings in another, and a mileage figure says nothing about the time a journey consumes, the frequency with which treatment requires repetition of that journey, or the scarcity of the specialty being sought. A veteran traveling forty miles once for a discrete procedure and a veteran traveling forty miles three times a week for recurring treatment satisfied or failed the same test in the same way, because the test measured one variable only and measured that variable identically for every category of care.

Congress, in the MISSION Act, chose a different legislative technique, and that choice supplies the central design claim of the statute on access. Rather than fixing replacement figures in the statutory text, Congress directed the department to designate access standards by regulation and to distinguish among categories of service in doing so. The statute established the consequence that followed from failure to meet a standard, namely eligibility for community care at department expense for a covered veteran who elected that course, while leaving the content of the standard itself to rulemaking. The design can be named plainly, and the naming matters for understanding everything that followed in the implementation debate: standards instead of numbers. The phrase captures a transfer of decision making as much as a change of measurement. Under the Choice Program, the decisive figures sat in an act of Congress, alterable only by another act of Congress. Under the MISSION Act, the decisive figures sat in a designation made by the Secretary through regulation, informed by analysis that the department described as drawing on practice in government and in the private sector and tailored to the needs of veteran patients. The eligibility line remained a line, with concrete consequences on either side, but the authority to draw the line, and to redraw the line, had moved.

What did the department propose in place of the fixed tests?

The department proposed designated access standards based on average drive time and appointment wait time, differentiated by type of care. The proposal set thirty minutes and twenty days for primary care and mental health, and sixty minutes and twenty eight days for specialty care.

The fuller chronology began on January 30, 2019, when the department announced proposed access standards for community care, together with proposed urgent care provisions, in a statement issued in Washington. Secretary Robert Wilkie presented the standards as a vital part of an effort to meet the needs of veterans and to reinforce trust in every interaction with the department. The announcement placed the access standards among six eligibility criteria for community care under the act, alongside grounds based on unavailability of a needed service, residence in a state without a full service department medical facility, a legacy ground carried forward from the forty mile Choice Program eligibility, agreement between veteran and referring clinician that community care served the best medical interest of the veteran, and a determination that a department medical service line failed to comply with department standards for quality. Access standards formed one gate among several, not the sole definition of community care eligibility, and a veteran who failed to qualify under the access standards could qualify under another criterion on the statutory list.

The figures announced on January 30, 2019, rested on two measures, average drive time and appointment wait time, and each measure carried two values differentiated by service category. For primary care, mental health care, and noninstitutional extended care services, the department proposed an average drive time standard of thirty minutes. For specialty care, the department proposed an average drive time standard of sixty minutes. On waiting time, the department proposed a standard of twenty days for primary care, mental health care, and noninstitutional extended care services, counted from the date of request and subject to certain exceptions, and a standard of twenty eight days for specialty care, likewise counted from the date of request. A veteran whom the department could not serve within the applicable standards became eligible to choose between an eligible community provider and care at a department medical facility. Eligibility conferred a choice rather than an assignment, and the announcement preserved the option of department care for a veteran who preferred to remain within the department system despite qualification for community care.

Formal rulemaking followed the announcement. The proposed rule for the Veterans Community Care Program, identified by Regulation Identifier Number 2900-AQ46, appeared in the Federal Register on February 22, 2019, at volume eighty four, page 5629, with comments due on or before March 25, 2019. The proposed regulatory text placed the designated access standards in a new provision, section 17.4040 of title thirty eight of the Code of Federal Regulations in the proposal, and tied eligibility to a determination that the department was unable to furnish the required care in a manner that complied with those standards. The department stated in the rulemaking discussion, as summarized by the American Hospital Association in March 2019, an intention to propose in a future rulemaking a reduction of the maximum wait for primary care and mental health care from twenty days to fourteen days during or after June 2020. That stated intention illustrates the regulatory character of the design. A trajectory for tightening a standard could be announced and executed through rulemaking, without a return to Congress, and the same channel remained available for movement in the opposite direction.

The substitution of drive time for distance deserves separate attention, because the change altered the variable being measured and not merely the threshold attached to the variable. Mileage is indifferent to terrain, traffic, road quality, and the presence of a river or a congested metropolitan center between a residence and a facility. Drive time, calculated as an average and measured from the residence of the veteran to the facility that could furnish the needed care, at least attempts to measure the burden that a patient experiences rather than the geometry that a map records. The department reasoned in the proposed rule, again as summarized by the American Hospital Association, that a shift from the distance criteria of the Choice Program to a drive time criterion would produce a more consistent standard across urban and rural veterans, consistency meaning comparable experienced burden rather than comparable mileage. The American Legion, through National Commander Brett Reistad in statements reported on January 30, 2019, generally supported the proposed guidelines and specifically supported basing access on actual drive times as opposed to straight line mileage, while cautioning that the department had an obligation to serve veterans rather than private health care providers.

The waiting figures carried a different kind of differentiation, one grounded in clinical tempo rather than geography. Twenty days for primary care and mental health care, against twenty eight days for specialty care, encoded a judgment that first contact and recurring foundational care ought to arrive sooner than a consultation with a specialist whose availability is constrained by scarcer training and smaller practitioner numbers. Primary care and mental health appointments are high volume, frequently recurring, and often time sensitive in ways that a headline wait conceals, since a postponed mental health appointment can interrupt a course of treatment already underway and a postponed primary care visit can defer the referral on which subsequent care depends. Specialty waits, by contrast, frequently involve diagnostic preparation, records transfer, and procedure scheduling that consume part of the interval for clinical reasons. A single thirty day figure, of the kind the Choice Program applied, was simultaneously too permissive for the first category and ill fitted to the second. Differentiated standards, whatever disputes attended the values selected in January and February of 2019, at least posed the correct question, which concerned the appropriate wait for a defined category of care rather than the appropriate wait for care in the abstract.

Differentiation by category also permitted the standards to recognize frequency and repetition, dimensions that the Choice tests flattened. Noninstitutional extended care services appeared in the January 30, 2019, announcement grouped with primary care and mental health care under the thirty minute and twenty day standards, a grouping that reflected the recurring character of such services and the cumulative burden imposed when a modest journey or delay repeats across weeks of treatment. The proposed rule, as summarized by the American Hospital Association, excluded institutional extended care services and nursing home care from the coverage of the designated access standards, confining the apparatus to outpatient and community based encounters. Delegation to rulemaking made revision a routine administrative possibility rather than a legislative project, and the January 2019 announcement, arriving roughly seven months after enactment of the MISSION Act on June 6, 2018, demonstrated the speed with which the delegated machinery could produce a categorized set of standards for public comment.

Editorial support tended to praise exactly that combination of differentiation and competitive pressure. The Wall Street Journal, in an editorial published on February 6, 2019, and highlighted by the department in a statement of the same date, endorsed the proposed standards, asked why opposition arose when the plan helped veterans obtain health care faster and closer to home, and argued that competition would put pressure on the department to reduce wait times. Four former Secretaries of Veterans Affairs added support in the same week, in statements the department publicized on February 6, 2019. The logic of that support followed the architecture. A standard, publicly stated and measured against department performance, converted waiting and travel from grievances into triggers, and a department that missed the trigger lost the exclusive claim to furnish the episode of care.

The honest counterweight concerns the location of the standard setting power and the ease with which a standard set by regulation can move. A figure in a statute is difficult to change, and the difficulty is a form of protection for anyone who benefits from the figure, because alteration requires bicameral passage and presentation to the President, with public debate at each stage. A figure in a regulation is easier to change by design. Notice and comment rulemaking imposes discipline, a public record, and an opportunity for veterans service organizations, providers, and members of Congress to object, and the February 2019 proposal followed that discipline with a comment period closing on March 25, 2019. Rulemaking discipline, however, operates within the executive branch, and a later Secretary persuaded that fiscal pressure, network capacity, or department performance justified longer waits or longer drives could loosen the standards through the same channel that created the standards, without persuading a single committee of Congress to report a bill. Flexibility, celebrated when the movement runs toward fourteen days, runs with equal procedural ease toward thirty five days, and the veteran who planned care around a twenty day standard held no statutory entitlement to the permanence of that figure. The eligibility line therefore became more responsive in both directions at once, more capable of refinement in light of evidence and more exposed to retrenchment in light of budgets, and any assessment that praises the first quality while omitting the second describes only half of the institutional change that Congress enacted.

Contemporaneous criticism gave that counterweight a concrete voice. Randy Reese, executive director of the Washington headquarters of Disabled American Veterans, told a joint hearing of the House and Senate Veterans Affairs Committees on February 26, 2019, as reported by Military.com on February 27, 2019, that the proposed standards had been put forward arbitrarily, that the standards were no different from the arrangements under the Choice Program in terms of improving care, and that the absence of market assessments left uncertainty about whether community care would actually be available when a veteran received a referral. Disabled American Veterans expanded the objection in public comments described in the organization publication in the spring of 2019, stating that the proposals as written did not achieve the broadly understood goals and objectives of the MISSION Act, that the department had acted primarily unilaterally since passage of the act rather than in collaboration with Congress or veterans groups, and that the proposed standards applied to the department without imposing corresponding quality standards on non department care providers. Those objections contested the values chosen and the process followed rather than the principle of differentiation itself. Opposition from Disabled American Veterans did not amount to a defense of the thirty day and forty mile tests. The contested ground concerned the exercise of delegated power in the first rulemaking under the act, precisely the ground that a standards based design makes permanent, since every future revision reopens the questions of consultation, evidence, and market capacity that the February 2019 comment period presented.

A second counterweight concerned measurement itself. Average drive time depends on the mapping method chosen, the assumptions fed into geomapping software, and the identification of the facility against which the journey is measured, and each choice can move individual veterans across the eligibility line without any change in the headline standard. Wait time measurement presented a comparable sensitivity, resting on the date of request and on the handling of a veteran agreement to a later date. Under the Choice Program, similar disputes had arisen over the forty mile figure, including the correction in April 2015 from straight line distance to driving distance, and the MISSION Act design did not abolish measurement disputes by changing the variable measured. Richer measures demand richer administration, with more points at which a veteran, a scheduler, and a regulation can disagree about whether a standard has been met.

The access standards formed one limb of a two limb standards architecture, and the second limb concerned quality rather than access. In outline, the act contemplated designated quality standards against which the department would assess a medical service line, meaning a defined line of care at a department facility rather than the facility as an undifferentiated whole. Where the department determined that a service line was not providing care in a manner that complied with department standards for quality, a veteran who required care from that service line became eligible for community care, even if drive time and wait time at that facility satisfied the access standards in full. The January 30, 2019, announcement listed the quality ground as the sixth eligibility criterion. Summaries of the act prepared for the House Committee on Veterans Affairs in 2018 described the comparison structure behind such a determination, under which deficient timeliness would be assessed by comparison with the same medical service line at different department facilities and deficient quality would be measured against distinct and appropriate quality measures, including comparison with non department performance. The full operation of the quality criteria belongs to the treatment of the eligibility criteria as a whole, and the point for the standards architecture is structural. Access standards asked whether care was reachable soon enough and near enough, quality standards asked whether reachable care was good enough, and the statute treated a negative answer to either question as a sufficient basis for a community care election. A facility could therefore pass on access and fail on quality, or fail on access and pass on quality, the two judgments remaining independent because the harms addressed were independent.

The timetable gave the architecture an early and demanding test. The department announcement of January 30, 2019, stated that the proposed access standards would take effect when the final regulations published, expected in June 2019, and the rulemaking record treated June 6, 2019, as the scheduled date for implementation of the community care program under the act, one year after enactment. A standards regime lives or dies on administration after the effective date, on the accuracy of drive time calculations, the honesty of scheduling data, and the capacity of community networks where veterans reside. None of those questions could be answered by the statutory text or by the February 2019 proposal, and the debate of early 2019 mapped the questions without resolving the questions. What the statute had settled, by the deliberate choice that gives the design a name, was the kind of instrument that would govern access for years of administration after May 1, 2019. Congress had traded the certainty of enacted figures for the adaptability of designated standards, differentiated by category of care, revisable by rulemaking, and paired with a quality limb that reached failures access measures could not see. Standards instead of numbers described the operative decision of the legislation on access, the decision from which the January announcement, the February rulemaking, the endorsements, and the objections of 2019 all followed as consequences.

The New Benefit and the Caregiver Expansion

Title I of the VA MISSION Act of 2018 contained two provisions that reached veterans and families through routes outside the ordinary channels of department care. One created a benefit that had not previously existed in that form, allowing an eligible veteran to walk into a community clinic for minor illness or injury without first obtaining authorization from the Department of Veterans Affairs. The other took a program that Congress had created in 2010 for a single generation of seriously injured veterans and rewrote its eligibility rules so that, in scheduled phases, caregivers of veterans from every era of service could qualify. The walk-in benefit depended on contracts with community providers, on enrollment records, and on a copayment schedule set by regulation. The caregiver expansion depended on a certification about information technology, on dates of injury written into the statute, and on a benefit structure that paid and supported the family member who provided care at home.

The walk-in provision appeared as section 105 of Public Law 115-182, under the heading of access to walk-in care. Section 105 amended chapter 17 of title 38, United States Code, by inserting a new section 1725A, titled access to walk-in care, after section 1725. The Secretary was to develop procedures to ensure that eligible veterans were able to access walk-in care from qualifying non-Department entities or providers. Before the enactment of section 105 on June 6, 2018, community care furnished at department expense generally moved through authorization channels, under which the department approved a course of care before a community provider delivered it. Section 1725A carved a defined category of minor, episodic care out of that sequence. An eligible veteran with a sore throat, a sprained ankle, an earache, or a comparable nonemergent problem could present at a participating clinic, receive treatment during that visit, and leave payment and record transfer to the arrangements that the statute required the department to build in advance. The benefit was therefore neither an emergency benefit nor a general entitlement to community care on demand. General community care under section 1703 of title 38 rested on eligibility criteria and on authorization. Walk-in care occupied the narrower ground between those poles, covering treatment that could not sensibly wait for a scheduled appointment but did not present an emergency.

The statutory definition controlled that narrow ground. Walk-in care, as section 1725A framed the term, meant nonemergent care provided by a qualifying non-Department entity or provider that furnished episodic care and not the longitudinal management of conditions, with the term otherwise to be defined through regulations that the Secretary was to promulgate. Episodic care addressed a particular condition, or a limited set of conditions, in a single visit, without establishing an ongoing relationship between the veteran and the clinic. Longitudinal management involved outpatient care directed at prevention and treatment goals through communications that continued over an extended period, the kind of care that belonged with a primary care provider who held the veteran’s history and medication record. In the proposed rule that the department published on January 31, 2019, preventive health services were generally excluded from the benefit, on the reasoning that continuity of care was best preserved when a primary care provider coordinated preventive care as part of overall health care. Immunization against influenza occupied a specified place inside the benefit, and therapeutic vaccines furnished during treatment of an included condition were treated as part of that treatment. The conditions that the department associated with the benefit in the rulemaking reflected the episodic definition: influenza-like symptoms, wheezing, sprains, sore throats, painful urination, bumps and bruises, ear pain, and mild skin irritations.

Eligibility for the benefit rested on two conditions that tied the veteran to the department’s own system of care. An eligible veteran, under section 1725A, was an individual who was enrolled in the health care system established under section 1705(a) of title 38 and who had received care under chapter 17 of title 38 within the 24-month period preceding the furnishing of walk-in care. The January 31, 2019 proposed rule explained the second condition by identifying the kinds of care that counted toward it. Care provided in a department facility counted. Care authorized by the department and performed by a community provider counted. Care furnished by a State veterans home counted. Urgent care furnished under the new section itself also counted, so that a walk-in visit could sustain the recency that a later walk-in visit required. A veteran who had enrolled but had received no such care for more than two years fell outside the definition, as did a veteran who had never enrolled. The design linked a benefit delivered entirely by community providers to a documented, recent relationship with the department, a link that served the continuity obligation that section 1725A placed on the Secretary, who was to ensure continuity of care for veterans who received walk-in care and to provide for the movement of medical records between walk-in providers and the department.

The provider side of the benefit rested on agreement rather than on licensure alone. A qualifying non-Department entity or provider was a non-Department entity or provider that had entered into a contract, agreement, or other arrangement with the Secretary to furnish walk-in care under the section. The department furnished community care through networks maintained by third party administrators, and the proposed rule treated those administrators as falling within the definition, so that the benefit would operate primarily through the contracted network. Whenever practicable, the Secretary could use a federally qualified health center, and the proposed definition of a qualifying entity expressly included such centers. A clinic that held no arrangement with the department stood outside the benefit, and care obtained from a nonqualifying provider, or care that exceeded the scope of the benefit as defined, fell on the veteran rather than on the department under the rulemaking as proposed. The department proposed to publish a website listing qualifying entities and providers, together with covered services and general program information. The absence of a prior authorization requirement was the benefit’s central convenience, and the network requirement was its central limit.

The statute spoke of walk-in care, while the department proposed to refer to the benefit as urgent care, explaining in the January 31, 2019 proposed rule that the term accorded with industry practice. That proposed rule, which would have added a new section 17.4600 to title 38 of the Code of Federal Regulations, carried the comment period to March 4, 2019, and the department scheduled the benefit to begin on June 6, 2019.

Cost sharing supplied the most detailed part of the rulemaking, because section 1725A gave the Secretary a structured discretion rather than a single figure. Under subsection (f) of the new section, the Secretary could require an eligible veteran to pay a copayment for each episode of care furnished under the section if the eligible veteran would be required to pay a copayment under title 38. A veteran who was not required to pay a copayment under the title could access walk-in care without a copayment for the first two visits in a calendar year, with a copayment at an amount determined by the Secretary permitted for additional visits. A veteran who was required to pay a copayment under the title could be required to pay a regular copayment for the first two walk-in visits in a calendar year and a higher copayment, at an amount determined by the Secretary, for additional visits. After the first two episodes of care, the Secretary could adjust the copayment based on the priority group in which the veteran was enrolled, on the number of episodes furnished during a year, and on other factors that the Secretary considered appropriate. The free visits at the front of the statutory sequence were therefore tied to copayment status under the title as a whole, which is to say to whether the veteran owed copayments for department care generally.

The department’s proposal, published on January 31, 2019, set a regular copayment of 30 dollars and arranged liability around the priority groups through which veterans enroll for department health care. For veterans enrolled in priority groups 1 through 6, the department proposed to require the 30 dollar copayment only after three urgent care visits in a calendar year, a threshold one visit later than the two-visit point at which the statute first permitted a copayment for that class of veterans. The proposal contained an exception within that band. Veterans described in section 17.36(d)(3)(iii) of title 38 of the Code of Federal Regulations, a category covering certain veterans enrolled in priority group 6 by reason of specified exposures or service for matters not covered by that priority category, were excluded from the groups 1 through 6 treatment. For veterans enrolled in priority groups 7 and 8, including the veterans described in that same regulatory provision, the department proposed to charge 30 dollars for every visit, without exercising the statutory authority to raise the rate after two visits. A visit consisting solely of immunization against influenza carried no copayment under the proposal, and where more than one copayment would apply on the same day, the department proposed to charge only the higher one. Copayments under the proposal were not owed at the time of service, so that a veteran’s obligation ran to the department after the visit rather than to the clinic at the door. The department explained the 30 dollar figure by reference to copayments for similar benefits under the TRICARE and Medicare programs, by reference to an average of approximately 67 dollars under commercial health plans in an analysis described in the rulemaking, and by reference to legislative history in the Senate committee report suggesting that the amount not exceed 50 dollars per visit.

The caregiver provision addressed a different form of care, delivered not in a clinic during a single visit but in a veteran’s home across months and years. Congress had legislated on the subject in the Caregivers and Veterans Omnibus Health Services Act of 2010, Public Law 111-163, signed on May 5, 2010, which added section 1720G to title 38 and directed the Secretary to establish two related programs. The first was the Program of General Caregiver Support Services, a broad program for caregivers of covered veterans enrolled in the department health care system, including caregivers who did not reside with the veteran. A covered veteran for that program was an individual who needed personal care services because of an inability to perform one or more activities of daily living, because of a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury, or because of other matters that the Secretary specified. Its services included education on administering personal care, delivered in person and on an internet website, through telehealth and other technologies, and through the teaching of techniques, strategies, and skills for caring for a disabled veteran. Counseling formed part of the program, as did respite care of not less than 30 days annually and information about support available from other public, private, and nonprofit agencies.

The second program created in 2010, the Program of Comprehensive Assistance for Family Caregivers, carried a narrower gate and a heavier set of benefits. Eligibility centered on a veteran or servicemember who had a serious injury, including traumatic brain injury, psychological trauma, or other mental disorder, incurred or aggravated in the line of duty on or after September 11, 2001, and who needed personal care services for reasons that the statute specified, among them an inability to perform one or more activities of daily living or a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury. To each family caregiver approved as a provider of personal care services, the program provided instruction, preparation, and training, ongoing technical support addressed to routine, emergency, and specialized caregiving needs, counseling, and lodging and subsistence in connection with travel covered by the statute. To the family caregiver designated as the primary provider, the program provided more: mental health services as the Secretary determined appropriate, respite care of not less than 30 days annually, including 24-hour per day care commensurate with the care provided by the family caregiver, medical care under section 1781 of title 38, and a monthly personal caregiver stipend. Section 1781 supplied health coverage through the Civilian Health and Medical Program of the Department of Veterans Affairs, known as CHAMPVA, for a caregiver who did not qualify for care or services under another health care plan. The stipend followed a schedule established by the Secretary based on the amount and degree of personal care services provided, and the statute directed the Secretary, to the extent practicable, to set the amount at not less than the monthly amount that a commercial home health care entity would pay an individual in the veteran’s geographic area for equivalent services.

The date line in the 2010 statute excluded the caregivers of every veteran injured before September 11, 2001, and that exclusion generated the campaign that the MISSION Act eventually answered. A spouse caring for a veteran injured in an earlier conflict could qualify for the general program and for nothing under the comprehensive program, however severe the injury. The Senate Committee on Veterans’ Affairs, in Senate Report 115-212 on the Caring for Our Veterans Act, stated that the eligibility criteria created an inequity between veterans who had served after September 11, 2001 and veterans who had served before that date. The Elizabeth Dole Foundation placed expansion at the center of its public advocacy on the legislation. In a statement dated May 8, 2018 on committee passage of the bill in the House of Representatives, Senator Elizabeth Dole, speaking for the Foundation, described caregivers of veterans from before September 11, 2001 as barred from the comprehensive program because of the veteran’s era of service, stating that such caregivers made up 80 percent of the nation’s 5.5 million military and veteran caregivers. In a statement on the signing of the Act on June 6, 2018, Senator Dole described the prior arrangement as a long-standing inequity that had prevented 4.4 million caregivers of veterans from before September 11, 2001 from accessing resources under the program. Senator Patty Murray pressed corrective legislation to extend caregiver assistance to qualified veterans of all eras, and the caregiver provision drew on the Military and Veteran Caregiver Services Improvement Act associated with Senator Susan Collins and Senator Murray. The advocacy and the legislative record converged on a single proposition, that the seriousness of an injury incurred in the line of duty and the burden carried by the caregiver did not vary with the calendar.

Section 161 of the MISSION Act, within Title I, amended section 1720G to remove the date line in stages rather than at a stroke. The section also widened the program at its edges. It added a further ground on which an eligible veteran could be found to need personal care services, namely a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired. It expanded the services available to a designated primary family caregiver by adding financial planning services and legal services relating to the needs of injured veterans and their caregivers, furnished through contracts with, or grants to, public or private entities. Section 162 required the department to implement an information technology system that fully supported the family caregiver program and allowed for data assessment and comprehensive monitoring. Section 163 expanded the annual evaluation report on the caregiver programs to include a description of barriers to accessing and receiving care and services and, for the comprehensive program, an evaluation of the sufficiency and consistency of the training provided to family caregivers. The phase design in section 161 tied every step of expansion to the information technology requirement in section 162, making the certification of that system the event from which the statutory timetable ran.

How did the phased expansion decide which caregivers became eligible first?

The statute put the oldest cohort first. During the two years after the Secretary certified to Congress that the required information technology system was fully implemented, eligibility opened to caregivers of veterans injured on or before May 7, 1975. Two years after certification, eligibility opened to caregivers of veterans from every remaining era.

Before the certification, the 2010 date line remained in force, and assistance under the comprehensive program was confined to caregivers of veterans with a serious injury incurred or aggravated in the line of duty on or after September 11, 2001. The first phase occupied the two-year period beginning on the date on which the Secretary submitted to Congress a certification that the department had fully implemented the information technology system required by section 162. During that period, the eligible class consisted of veterans with a qualifying serious injury incurred or aggravated on or before May 7, 1975, together with the class from on or after September 11, 2001 that the 2010 statute had covered from the outset. The second phase began after the date that was two years after the submission of the certification. From that date, the statute removed the date qualification altogether, so that a veteran with a serious injury incurred or aggravated in the line of duty qualified without regard to the period of service in which the injury occurred. The practical consequence fell on the middle cohort, veterans injured after May 7, 1975 and before September 11, 2001, whose caregivers entered the program only when the second phase opened. The statute required the Secretary, not later than 30 days after submitting the certification, to publish the certification date in the Federal Register, converting an administrative judgment about a computer system into a public date from which the two periods could be reckoned. No calendar date for either phase appeared in the statute itself, since each date depended on a certification that had not been given at enactment on June 6, 2018.

The order of the phases carried the equity argument into administration. The cohort admitted first, veterans injured on or before May 7, 1975, was the cohort whose service lay furthest in the past and whose caregivers had lived under the 2010 exclusion for the longest span of time. Between the signing of the 2010 Act on May 5, 2010 and the enactment of the MISSION Act on June 6, 2018, eight years passed during which a caregiver of a veteran seriously injured in an earlier era could watch a program of stipends, training, respite care, mental health services, and health coverage operate for a younger generation while remaining outside it. Admission of the oldest cohort ahead of the cohort injured between 1975 and 2001 gave the sequence a compensatory logic. The veterans whose injuries predated May 7, 1975 had the least remaining time in which the stipend, the respite entitlement, the mental health services, and CHAMPVA coverage for a caregiver without other coverage could be of use, and delay imposed its heaviest costs on the families with the longest record of unassisted care. The committee reasoning recorded in Senate Report 115-212 paired that priority with a caution about capacity, presenting the two-phase structure and the certification as safeguards against the program being overwhelmed. Eligibility would follow the injury rather than the era, and the correction of the inequity that the 2001 date line had created would proceed at a pace set by a certified administrative system, beginning with the veterans who had waited longest for it.

The Other Titles and the Commission That Never Met

Title I, titled Caring for Our Veterans, supplied the community care program and the expansion of the family caregiver program, and those changes drew the largest share of attention after enactment on June 6, 2018. Public Law 115-182 contained four further titles, and the remaining architecture formed a package with Title I. The other titles governed the physical estate from which department care was delivered, the workforce that staffed that estate, the places where staffing and facilities fell short, and a set of personnel and administrative questions that Congress chose to settle in the same vehicle. The design described a department expected to buy care in the community where buying made sense, to rebuild and resize its own plant where ownership made sense, and to recruit enough clinicians to operate whatever plant survived. The failure of one part of that design, recorded in dated events at the end of this section, left the rest operating without the facility review Congress had paired with it.

The Architecture Beyond Community Care

Title II bore the heading VA Asset and Infrastructure Review. Title I dealt with flows of patients, authorizations, and payments; Title II dealt with stock: buildings, campuses, leases, and land accumulated over generations, much of it configured for patterns of inpatient care and for a veteran population whose geographic distribution had shifted over time. Subtitle A, sections 201 through 209, carried the short title VA Asset and Infrastructure Review Act of 2018 and created the review process examined in depth below, beginning with the commission in section 202 and continuing through a procedure for making recommendations, implementation authority, a dedicated account, and congressional consideration of the commission report. Subtitle B, titled Other Infrastructure Matters, contained three sections that operated independently of the commission. Section 211 required improvement in the training of construction personnel. Section 212 required a review of enhanced use leases, the arrangements under which department property could be leased for purposes compatible with the department mission. Section 213 required an assessment of health care furnished by the department to veterans who lived in the Pacific territories, where distance and small populations complicated the ordinary model of a full service medical center.

Title III bore the heading Improvements to Recruitment of Health Care Professionals, and its six sections formed the workforce counterpart to Title II. Buildings without clinicians delivered no care, and the title attacked the economics that shaped whether professionals chose department employment. Section 301 provided designated scholarships for physicians and dentists under the Health Professional Scholarship Program, tying educational support to later service. Section 302 increased the maximum amount of debt that could be reduced under the Education Debt Reduction Program, raising the ceiling from 120,000 dollars to 200,000 dollars over five years and the annual amount from 24,000 dollars to 40,000 dollars. Section 303 established a Specialty Education Loan Repayment Program for physicians in specialties where recruitment presented particular difficulty. Section 304 created the Veterans Healing Veterans Medical Access and Scholarship Program, joining the scholarship mechanism to a pipeline in which veterans themselves trained for clinical roles. Section 305 addressed bonuses for recruitment, relocation, and retention, the three points at which compensation could decide whether a professional joined, moved for, or remained in a department position. Section 306 included Vet Center employees in the Education Debt Reduction Program, closing a gap under which readjustment counseling staff had stood outside a benefit available elsewhere in the department.

Title IV bore the heading Health Care in Underserved Areas, with three sections aimed at places where the department presence was thin. Section 401 required criteria for designating certain medical facilities as underserved facilities, together with a plan to address the problem of underserved facilities; a designation without a plan would have produced a label, while a plan without criteria would have produced discretion without a standard. Section 402 established a pilot program to furnish mobile deployment teams to underserved facilities, sending needed personnel to a facility rather than waiting for permanent recruitment to fill every gap. Section 403 established a pilot program on graduate medical education and residency, creating authority to place residents in underserved settings and in covered facilities outside the traditional department campus. Title IV worked on the same shortage as Title III from the geographic end: Title III changed what the department could offer a clinician anywhere, while Title IV changed where clinicians could be trained, deployed, and supported.

Title V bore the heading Other Matters and collected provisions with no single theme beyond enactment in the same law. Section 501 required an annual report on performance awards and bonuses awarded to certain high level employees, including regional office directors, medical center directors, directors of Veterans Integrated Service Networks, and senior executives. Section 502 addressed the role of podiatrists and provided that a doctor of podiatry was eligible for supervisory positions in the Veterans Health Administration to the same degree that a physician was eligible, a provision Congress enacted as part of a broader treatment of podiatrist grade and pay alongside physicians and dentists. Section 503 revised the definition of a major medical facility project, and section 504 authorized specified major medical facility projects. Section 505 required personnel transparency, with quarterly publication on the department website of personnel encumbering positions, accessions and separations, vacancies by occupation, and hiring speed against the time to hire target of the Office of Personnel Management, plus an annual report to Congress on steps toward full staffing capacity. Section 506 required a program establishing peer specialists in patient aligned care team settings within medical centers, and section 507 required a two year pilot program on medical scribes, with reporting by the department and the Government Accountability Office. Sections 508 and 509 extended the requirement to collect fees for housing loans guaranteed by the Secretary, extended through 2028, and a reduction in pension furnished to certain veterans covered by Medicaid plans for services in nursing facilities. Sections 510 through 512 supplied an appropriation of amounts, a technical correction, and a provision on budgetary effects.

A Review Modeled on Base Closure

The center of Title II was the process that Subtitle A built around the Asset and Infrastructure Review Commission. Congress modeled the process on the military base closure rounds conducted under the Base Realignment and Closure framework, and the borrowing was structural. In the base closure model, an independent commission received proposals for closing or realigning installations, tested the proposals in public, and sent a single package forward under rules that limited the ability of the President or Congress to pick the package apart installation by installation. Individual closures imposed concentrated losses on identifiable communities and invited their representatives to block each closure in isolation, even where the overall estate had grown mismatched to need; a package forced a collective judgment. Subtitle A applied the same logic to hospitals, clinics, and campuses of the Veterans Health Administration.

Section 202 established the commission as an independent commission and fixed its composition with unusual specificity. The commission was to consist of nine members appointed by the President, by and with the advice and consent of the Senate, and the President was to transmit the nominations not later than May 31, 2021. In selecting individuals, the President was required to consult with the Speaker of the House of Representatives, the majority leader of the Senate, the minority leader of the House of Representatives, the minority leader of the Senate, and, concerning the appointment of three members, congressionally chartered, membership based veterans service organizations. At nomination, the President was to designate one individual as Chair and one as Vice Chair. Veterans, reflecting the demographics of veterans enrolled in the department system of annual patient enrollment, were to be adequately represented. At least one member was to have experience working for a private integrated health care system with annual gross revenues of more than 50,000,000 dollars. At least one member was to have experience as a senior manager for specified federal or related health entities of the kind listed in the Veterans Access, Choice, and Accountability Act of 2014. At least one member was to have experience with capital asset management for the Federal Government and familiarity with trades related to building and real property, including construction, engineering, architecture, leasing, and strategic partnerships. At least three members were to represent congressionally chartered, membership based veterans service organizations. Members were to serve without pay, apart from travel expenses. The commission was to meet only during calendar years 2022 and 2023, with each meeting open to the public and all proceedings, information, and deliberations available for public review, and section 202 set termination on December 31, 2023.

Section 203 began the sequence with criteria rather than with a list of facilities. The Secretary was required, not later than February 1, 2021, and after consulting with veterans service organizations, to publish proposed criteria in the Federal Register and transmit the criteria to the Committees on Veterans Affairs of the Senate and the House of Representatives. The criteria were to govern assessment and recommendations regarding modernization or realignment and were required to include the preferences of veterans regarding health care furnished by the department. Public comment on the proposed criteria was to run for at least 90 days, and final criteria were due in the Federal Register and to the committees not later than May 31, 2021. The Secretary was then required, not later than January 31, 2022, and after consulting with veterans service organizations, to publish in the Federal Register and transmit to the committees and to the commission a report detailing recommendations on the basis of the final criteria. The factors for the Secretary included market area health system planning metrics; effective and efficient access to high quality care; the potential to reconfigure, repurpose, consolidate, realign, exchange, outlease, replace, sell, or dispose of property that no longer met federal needs; the need to acquire facilities; savings from consolidation and colocation; the timing of costs and savings; alignment with the department mission; effects on education, research, and emergency preparedness; local stakeholder input; capacity and commercial market assessments; and the extent to which a facility had been appropriately staffed, including determinations about insufficient resource allocation or deliberate understaffing. The supporting assessments were to examine capacity at each Veterans Integrated Service Network and medical facility, identify gaps in care, consider contracts, changed operations, extended hours, added personnel, expanded space, or realigned resources, forecast demand, include a commercial market assessment conducted by a nongovernmental entity, and consider the federal ability to retain a presence in an area otherwise devoid of commercial providers or at risk of losing such providers.

The commission stage was deliberative and public. After receiving the recommendations, the commission was to conduct public hearings in regions affected by a recommendation to close a facility and, to the greatest extent practicable, in regions affected by a recommendation to modernize or realign a facility, with witnesses including at a minimum an enrolled veteran identified by a local veterans service organization and a local elected official. The commission was required, not later than January 31, 2023, to transmit to the President a report with findings, conclusions, and the recommendations of the commission, with a copy to the two committees on the same date. The commission could change a recommendation only after determining that the Secretary had deviated substantially from the final criteria, and only where the change was consistent with the final criteria, notice of the proposed change had appeared in the Federal Register not less than 45 days before transmission, and public hearings on the change had been conducted; any differing recommendation required explanation and justification in the report.

Presidential and congressional review operated under deadlines that left little room for drift. The President was required, not later than February 15, 2023, to transmit to the commission and to Congress approval or disapproval of the recommendations, and approval meant approval of all recommendations, transmitted with a certification. Disapproval in whole or in part required the President to transmit reasons not later than March 1, 2023, after which the commission was to transmit a further report not later than March 15, 2023; approval of that report again required approval of all recommendations, transmitted with a certification. Failure to transmit an approval and certification by March 30, 2023, terminated the selection process under the subtitle. Section 204 barred implementation if a joint resolution disapproving the recommendations was enacted under section 207 before the earlier of the end of the 45 day period beginning on presidential transmittal, computed with exclusions for certain adjournment days, or sine die adjournment of the session; absent such a resolution, the Secretary was to begin implementation not later than three years after presidential transmittal. Sections 205 and 206 supplied implementation authority and a Department of Veterans Affairs Asset and Infrastructure Review Account, covering alteration, acquisition, leasing, construction, disposition, environmental mitigation and restoration, historic preservation compliance, and consultation with state and local governments before disposal of surplus property. The design left Congress a single, time limited veto over a complete package and left individual members without a statutory route to strike one facility from the list while preserving the rest.

Why did the commission never meet?

The commission never met because the Senate never confirmed any commissioner. President Joseph Biden transmitted eight nominations in March 2022, but on June 27, 2022, twelve senators announced that the process lacked their support and would not move forward, leaving the nine member body without confirmed members.

The sequence diverged from the statutory schedule at the point where Senate confirmation was required. The department released its Asset and Infrastructure Review report on March 14, 2022, and the release stated that Secretary Denis McDonough was required to publish the report in the Federal Register and submit the recommendations to Congress and to a presidentially appointed commission. The recommendations arrived after the January 31, 2022 date in section 203, and the commission that was to receive and revise the recommendations had no confirmed membership when the report appeared. On March 9, 2022, the White House announced eight nominees for the nine member commission, with former Representative Patrick Murphy of Pennsylvania designated as chairman and Jonathan Woodson, a former Assistant Secretary of Defense for Health Affairs, designated as vice chairman; the nomination of Patrick Murphy was received in the Senate on March 10, 2022, and referred to the Committee on Veterans Affairs. No ninth nomination completed the panel in the reporting of June and July 2022, and none of the nominations received a confirmation hearing or a vote.

Opposition formed around the content of the March 14, 2022 recommendations and the data behind the recommendations, and the senators who stated reasons named rural access and proposed closures or downsizings as the grounds. On March 14, 2022, Senator Martin Heinrich of New Mexico stated that closing community based outpatient clinics in Gallup, Las Vegas, Española, and Raton was not an option, and Heinrich attributed the recommendations to a process that had relied on pre pandemic data that did not reflect access to broadband, provider shortages, or the absence of alternative sources of care in rural New Mexico. On May 24, 2022, Senators Mike Rounds of South Dakota and Joe Manchin of West Virginia reintroduced the Elimination of the VA Asset and Infrastructure Review Commission Act, joined by Senators Shelley Moore Capito of West Virginia, Martin Heinrich of New Mexico, John Thune of South Dakota, Maggie Hassan of New Hampshire, and Ben Ray Luján of New Mexico. Senator Manchin stated that the recommendations were skewed against rural states including West Virginia, which would have seen reduced services at three of four medical centers in the state, and Senator Rounds stated that the process threatened to close or eliminate services in South Dakota and across the nation. Senator Hassan stated that the recommendations included closing clinics in Littleton and Conway and moving outpatient surgical care from the Manchester medical center to community providers.

On June 27, 2022, a bipartisan group of twelve senators announced collective opposition to the process moving forward in the Senate: Senators Jon Tester of Montana, Joe Manchin of West Virginia, Mike Rounds of South Dakota, Martin Heinrich of New Mexico, Shelley Moore Capito of West Virginia, Maggie Hassan of New Hampshire, John Thune of South Dakota, Sherrod Brown of Ohio, Patty Murray of Washington, Steve Daines of Montana, Ben Ray Luján of New Mexico, and Rob Portman of Ohio. Senator Tester chaired the Senate Committee on Veterans Affairs, the committee to which the nominations had been referred, and the participation of the chairman gave the announcement institutional force. In the joint statement, the twelve senators stated a shared commitment to expanding and strengthening modern department infrastructure and a belief that the recommendations were not reflective of that goal and would put veterans in rural and urban areas at a disadvantage; the statement announced that the process did not have the support of the group and would not move forward, and that the commission was not necessary for a continued push to invest in department health infrastructure. A statement issued through the office of Senator Capito explained the mechanism: without Senate approval of the nominees, no commission would be established and the process outlined in the statute would not move forward.

The announcement drew an attributed response. Senator Jerry Moran of Kansas, ranking member of the Senate Committee on Veterans Affairs, stated that many department facilities were empty, underutilized, and severely outdated, and that refusal to confirm commissioners shut down the commission and possibly the only opportunity to address the condition of the facilities. Representative Mike Bost of Illinois, ranking member of the House Committee on Veterans Affairs, stated on June 27, 2022, that the statute had been signed into law with broad support from lawmakers of both parties and from major veterans service organizations. John Byrnes of Concerned Veterans for America, quoted in National Public Radio reporting dated July 20, 2022, described the decision as a refusal to make a hard choice and pointed to facilities dating from the New Deal era.

No later event in the 2022 record revived the sequence. None of the eight nominations received a confirmation hearing or a vote during 2022. Section 203 had fixed the dates for commission and presidential action in the first quarter of 2023, and every step in that sequence depended on a report from a seated commission; without commissioners, no report could issue and the sequence could not begin. Section 202 had set the termination date at December 31, 2023, and the account and implementation authorities in sections 205 and 206 stood unused for any recommendation under the subtitle. Congress did not repeal Subtitle A during the events of 2022, and the elimination bill introduced in May 2022 did not supply the legal end of the commission. The review machinery of Title II was nullified by inaction rather than by repeal: a statute built to force an up or down outcome was stopped at the confirmation gate, the one point in the design where inaction alone was sufficient to prevent every later step from occurring.

Measured Effects, the Money, and the Contested Reading

What the record showed by the spring of the first implementation year

The statute was signed on June 6, 2018, and its centerpiece, the Veterans Community Care Program, was scheduled to replace the Veterans Choice Program one year after enactment, in June 2019. A profile dated May 1, 2019 therefore sits in an unusual position. The law existed, money had moved, eligibility rules had been proposed, and the predecessor programs had generated several years of measurable activity, but the consolidated program itself had not treated a single patient. What could be measured by that date was the cost of the promise, the scale of the community care system the statute inherited, and the accuracy of the estimates on which Congress had been asked to rely.

The cost of the promise came from the Congressional Budget Office. In the estimate summarized by the Congressional Research Service in its report of November 1, 2018, the Congressional Budget Office put the cost of implementing the act at approximately 46.5 billion dollars over the period from fiscal year 2019 through fiscal year 2023, excluding the direct appropriation the statute itself carried and subject to discretionary appropriations from Congress. Within that total, the office assigned 21.4 billion dollars to the new Veterans Community Care Program and 6.7 billion dollars to the expansion of the Program of Comprehensive Assistance for Family Caregivers to veterans whose injuries or illnesses were incurred on or before September 11, 2001. The caregiver figure carried its own qualification, recorded in the same summary: the estimate excluded long term implementation costs of the expansion, because the expansion was designed to occur in two stages. The structure of the estimate mattered as much as the total. Most of the money was not appropriated by the statute itself. It depended on future appropriations acts, which meant that the act authorized a direction of travel while leaving the pace of that travel to annual decisions that Congress had not yet made when the estimate was published.

Separate from that projected cost stood the bridge funding the act carried for the program it was replacing. Section 510 of the statute provided 5.2 billion dollars in mandatory funds for the Veterans Choice Fund, available without fiscal year limitation. The Congressional Budget Office, as summarized by the Congressional Research Service, expected that amount to keep the Choice Program funded until about the first half of calendar year 2019. The bridge was necessary because the Choice Program had repeatedly outrun its funding. In testimony before the Senate Committee on Veterans Affairs, Secretary David Shulkin recorded that Congress had appropriated 2.1 billion dollars in emergency funding for the program in August 2017, when the fund faced exhaustion, and a further 2.1 billion dollars in December 2017. A program that required two emergency infusions within five months, and then a larger infusion inside its successor statute, had demonstrated a consistent pattern: demand for purchased care exceeded the estimates used to fund it.

The utilization record behind those shortfalls was documented in the same Senate testimony and in the department budget materials of the period. Secretary Shulkin testified that more than 32.7 million outpatient medical care appointments were completed in fiscal year 2017, that community care appointments for outpatient medical care accounted for approximately 36 percent of all such appointments provided through the department in that year, a rise of four percentage points from fiscal year 2016, and that more than 1.1 million veterans used the Veterans Choice Program in fiscal year 2017, an increase of about 35,000 veterans from fiscal year 2016. Choice appointments, he testified, comprised approximately half of all community care completed appointments in fiscal year 2017. The longer series in the department budget justification data for fiscal year 2014 through fiscal year 2018 told the same story in dollars. Those budget justification materials recorded that the amount the department obligated for community care rose by about 82 percent between fiscal year 2014 and fiscal year 2018, from 8.2 billion dollars to 14.9 billion dollars, and that the number of veterans authorized to use community care rose from 1.3 million to 1.8 million over the same period. The approximately 1.8 million veterans authorized in fiscal year 2018 represented about 30 percent of the approximately 6.2 million veterans who accessed department health care services that year. Community care was therefore not a marginal supplement at the moment of consolidation. It was a second delivery system operating at substantial scale alongside the first.

The department budget justification data for those years also exposed the weakness in the estimating machinery. Actual obligations for community care in fiscal year 2017 came in 1.2 billion dollars higher than the department had originally estimated, and actual obligations in fiscal year 2018 came in 2.2 billion dollars higher than originally estimated. Department officials attributed the gaps, in explanations recorded in the department budget materials of the period, to several causes, among them policy changes and increased costs for the Choice Program. To cover the higher obligations, the department sought and received additional funding for the Choice Program outside the annual appropriations process and drew on other funding sources, including unobligated amounts from prior fiscal years. The pattern carried a direct implication for the MISSION Act. A statute whose central mechanism expanded eligibility for the very category of care whose costs had been underestimated twice in two years placed unusual weight on the quality of future estimates, and the department estimate presented in its budget justification materials, that obligations for community care would rise to 17.8 billion dollars by fiscal year 2021, an increase of about 20 percent from the fiscal year 2018 level, rested on assumptions about the new eligibility criteria that no operating experience had tested by May 2019.

The funding arithmetic

The money question in the statute was never only how much community care would cost in isolation. It was how community care would be paid for inside a health budget of finite size. The fiscal year 2019 budget request illustrated the scale of the commitment. In its budget announcement of February 2018, the department presented a total medical care budget of 75.2 billion dollars and identified 13.2 billion dollars for community care within that request. The two forms of care sat in divided accounts in that request, a separate Medical Community Care account having existed from fiscal year 2017 alongside the medical services appropriation that funded direct care. Secretary Shulkin also testified during the fiscal year 2019 budget hearings that the request proposed merging the medical community care appropriation with the medical services appropriation, a change he presented as a way to give the department greater ability to direct resources toward the services veterans needed most. The proposed merger made explicit an arithmetic that operated whether or not the accounts were formally combined. Appropriations for department health care arrived as finite sums. Each dollar obligated to pay a community provider for an episode of care was a dollar unavailable to staff a department clinic, maintain a department facility, or shorten a department waiting list, unless Congress increased the total. Growth in one form of care, inside a fixed total, constrained the other form of care by simple subtraction.

That arithmetic explained the funding dispute that followed enactment. In a letter of July 2018 to Congress, Mick Mulvaney, Director of the Office of Management and Budget, and Peter O’Rourke, then serving as Acting Secretary of Veterans Affairs, stated the administration position that funding for the act could and should be provided within the existing nondefense discretionary spending cap, and that the administration opposed efforts to increase or adjust the cap. If the cap held and community care grew as projected, the growth would be financed by restraint elsewhere in the department budget. The Independent Budget, the annual budget document prepared by Disabled American Veterans, Paralyzed Veterans of America, and the Veterans of Foreign Wars, had warned of the same mechanism in its fiscal year 2019 recommendations, observing that in fiscal year 2018 and subsequent fiscal years insufficient medical services funding would be compounded as the department shed funds from its traditional medical services account to push more care into the community. The two documents disagreed about the remedy. They agreed about the arithmetic.

Two readings of the same statute

No question attached to the act drew more argument than the question of whether expanded community care amounted to privatization of the department health system. The argument deserves to be reported in the terms its participants used, at comparable length on each side, because the statute can be read through either frame without distortion of its text, and because the choice of frame determined what evidence each side treated as decisive.

The access reading began from the failure that produced the Choice Program in the first place: veterans waiting too long, or traveling too far, for care the department could not deliver on a clinically acceptable schedule. On this reading, eligibility for community care was a practical test rather than an ideological one, turning on drive time, wait time, the availability of a service, and the best medical interest of the individual veteran. Concerned Veterans for America, through its executive director Dan Caldwell, supported the act at enactment and defended the draft access standards the department released in January 2019 in those terms. Caldwell stated that the proposed standards would ensure veterans had better access to health care and more choices in how they received care, that the standards were simple and straightforward, and that they eliminated much of the confusion created by the Choice Program and the other community care programs. Caldwell also wrote, in an opinion article of that period, that the question was not about privatizing or destroying the department, that veterans under the law and the draft standards retained the option to remain in the department health care system, and that the standards oriented the department toward serving the veteran. The Veterans of Foreign Wars supported the legislation on access grounds at passage. Keith Harman, national commander of the Veterans of Foreign Wars, called on the organization membership to urge support for the bill and stated that passing the bipartisan and bicameral bill was critical to ensuring veterans had timely access to the care they had earned and deserved. Disabled American Veterans applauded House passage through its national commander Delphine Metcalf Foster, presenting the act as a set of reforms and improvements to strengthen the department health care system alongside the caregiver expansion the organization had sought for years. A letter in support of the bill carried the names of 38 veteran and military advocacy organizations, according to a summary of the legislation circulated by Senator Shelley Moore Capito. On the access reading, a department facility that could not offer a timely appointment had no claim on the patient merely because it was a department facility, and the measure of the program was whether the veteran received appropriate care without unreasonable wait or travel.

The integrated care reading began from a different property of the department system: its capacity to hold a complete record, coordinate referrals across specialties, and sustain specialized programs that depended on a stable population of patients and a stable appropriation. On this reading, each episode moved outward carried costs that the price of the episode did not capture, in fragmented records, in duplicated testing, in follow up that returned to a department clinician without a full account of outside treatment, and in the gradual transfer of funds away from the facilities that trained clinicians and treated the most complex conditions. The American Federation of Government Employees condemned passage of the act in May 2018. J. David Cox Sr., national president of the American Federation of Government Employees, stated that by voting to pass the act Congress was deferring its responsibility to care for the men and women who had served, and was taking an extremely dangerous step toward privatization. Cox directed particular objection at the facility review title of the act, stating that the organization was gravely concerned about the creation of a corporate style, private board that would make decisions about how and when to dismantle department facilities across the country. In earlier debate over expanded choice proposals, Cox had argued that lawmakers should instead reinvest in existing department facilities and rely on private sector doctors more carefully for specialties the federal workforce lacked, and Will Fischer, director of government relations for VoteVets, had described the voucher approach as a process in which each authorization moved money out of the department system. The Government Accountability Office supplied evidence that lent weight to the coordination concern without endorsing any position. In a report issued in June 2018 on the Choice Program, the Government Accountability Office found that veterans could wait as long as 70 days for community appointments in a program whose data systems and communication between the department, its contractors, and community providers had produced delays of the kind the program existed to prevent. Purchased care, on the evidence of the predecessor program, did not automatically arrive faster or better coordinated than department care.

Between the two readings stood a factual pattern that neither side disputed. Most veterans used both systems. The department figures for fiscal year 2018, in which about 30 percent of veterans accessing department health care were authorized for community care, described a population whose care was divided by service and by episode rather than sorted into exclusive camps: a veteran might receive primary care at a department clinic, surgery at a community hospital under authorization, and pharmacy services from the department, within a single year. The policy question was therefore not whether veterans would use community care, but how the boundary between the two systems would be drawn, and which system would bear the financial consequence when the boundary moved. The access reading treated boundary movement as the correction of a failure. The integrated care reading treated boundary movement as a transfer with cumulative effects. The statute resolved neither description. It set criteria, funded a transition, and left the cumulative outcome to implementation and to appropriations decisions that remained open at the start of May 2019.

What the statute did not do

The limits of the act were as much a part of its design as its expansions. The statute created no entitlement to community care on request. Eligibility depended on meeting criteria the statute specified, among them the unavailability of a needed service at a department facility, residence in a state or territory without a full service department facility, access standards the department was directed to establish, a determination that community care served the best medical interest of the veteran, and department quality considerations, and the department authorization process remained part of the pathway to paid community care. A veteran preference for an outside provider, standing alone, did not trigger payment.

The statute also left its most consequential numbers to future rulemaking. The access standards that would determine how many veterans qualified on wait time and drive time grounds were not written into the statutory text. The department released proposed standards in February 2019 that would have applied a 30 minute average drive time standard and a 20 day wait time standard for primary care, mental health care, and noninstitutional extended care services, and a 60 minute average drive time standard and a 28 day wait time standard for specialty care. As of May 1, 2019, those figures remained a proposal in a rulemaking process rather than operative law, and small changes to either number carried large consequences for eligibility volume and therefore for cost, as the experience of underestimation in fiscal years 2017 and 2018 had shown.

The facility review title carried a dependence of a different kind. Title II required the establishment of an Asset and Infrastructure Review Commission composed of nine members appointed by the President with the advice and consent of the Senate, in consultation with congressional leaders and congressionally chartered, membership based veterans service organizations. The commission was charged with considering department recommendations on modernization and realignment of Veterans Health Administration facilities and reporting to the President, after which the recommendations would go to Congress and take effect absent a joint resolution of disapproval. Every stage of that design after the department initial recommendations depended on actors outside the department control, and the first of those dependencies was the Senate confirmation process for the commission itself. The statute could command a review. It could not command the Senate timetable on which the reviewing body depended for its existence.

The caregiver expansion, the provision with the broadest support in the veterans community, was phased rather than immediate. The statute required the department first to build and certify an information technology system capable of supporting the expanded program, and eligibility was then to open in stages: first to veterans whose serious injuries were incurred on or before May 7, 1975, a cohort that Disabled American Veterans described at passage as covering the Vietnam, Korean, and Second World War eras, and two years after that first stage to veterans injured between 1975 and September 11, 2001, including those injured during the Gulf War. Families who had waited longest for recognition therefore faced a further wait measured in years after enactment, and the Congressional Budget Office estimate for the expansion, as noted in the Congressional Research Service summary, excluded long term costs precisely because of that staged structure.

Closing assessment

The VA MISSION Act of 2018 is best understood, at the vantage point of May 2019, as a statute that settled a structure and deferred its hardest questions. Congress decided that community care would be permanent, consolidated, and governed by access standards rather than by the emergency logic that had governed the Choice Program through repeated funding crises. Congress did not decide, because the statute did not decide, how generous those standards would be in final form, how the resulting cost would be accommodated inside the discretionary caps without pressure on department delivered care, or whether a facility review process dependent on Senate confirmation would ever sit. The measured record available in the spring of 2019 supported confidence on one point only: demand for purchased care had grown faster than every official estimate attached to it, and the burden of the new program would fall on the estimating, authorizing, and appropriating machinery that had produced those estimates.

Readers who want the longer arc behind those questions can follow the broader history of veterans legislation in the United States, which traces how each generation of veterans law redefined the federal obligation, and the later expansion of eligibility addressed in the guide to the PACT Act of 2022, which took up categories of harm the MISSION Act framework had left to other instruments. For the individual veteran, however, the operative law of the MISSION Act era was experienced less through statutes than through decisions: authorizations granted or denied, claims filed and adjudicated, appeals pursued through a separate legal channel. That channel has its own architecture, set out in the account of the VA claims process and the law that governs it, and a complete picture of the period requires holding the health care statute and the claims system in view together, since the same veteran, in the same year, ordinarily dealt with both.

The final judgment available in May 2019 was therefore a conditional one. The act replaced a temporary, fragmented, and repeatedly underfunded set of community care arrangements with a single program whose rules were clearer in design than in operation, and it extended caregiver support, on a delayed schedule, to families whom the earlier program had excluded by date alone. Whether the consolidated program would deliver faster care without weakening the integrated system that most veterans continued to use alongside it depended on rulemaking, appropriations, and administrative performance that the statute prescribed only in outline. The documentary trail behind that conditional judgment rewards organized retention across the rulemaking, appropriations, and oversight records of 2018 and 2019, and a study notebook that can keep your statute notes, citations, and case chronologies together free on VaultBook fits the scale of that record.

Frequently Asked Questions

Q: What did the MISSION Act consolidate?

The MISSION Act consolidated seven separate community care programs into one permanent Veterans Community Care Program under section 1703 of title 38. The arrangements folded into the single program included the Veterans Choice Program, Patient Centered Community Care, Project ARCH, the older contract care authority that section 1703 had housed before the 2018 rewrite, the emergency care authorities at sections 1725 and 1728, dialysis contracting, and sharing and affiliation agreements with other federal providers and academic partners. Consolidation replaced separate eligibility tests, referral routes, and payment practices with one set of criteria, one authorization pathway, one claims relationship with community providers, and one program office accountable for the whole.

Q: What are the six eligibility criteria in the MISSION Act?

A covered veteran qualified for community care under section 1703 of title 38 by meeting any one of six criteria. The department did not offer the care or service required; no full service department facility operated in the state of residence; the veteran held grandfathered eligibility carried forward from the Choice Program distance rule; the department could not furnish the care within the designated access standards; the veteran and the referring clinician agreed that community care served the best medical interest of the veteran; or the department medical service line in question failed the quality standards established under section 1703C. The first five criteria carried a mandatory duty to furnish care, subject to appropriations, while the sixth authorized the Secretary to furnish care.

Q: What drive time and wait standards did the MISSION Act set?

The MISSION Act set no drive time or wait time figures in the statutory text. Congress directed the Secretary to designate access standards by regulation under section 1703B of title 38, differentiated by category of care, and failure to meet a standard made a covered veteran eligible to elect community care. The department announced proposed standards on January 30, 2019. For primary care, mental health care, and noninstitutional extended care services, the proposal set an average drive time of thirty minutes and a wait time of twenty days from the date of request. For specialty care, the proposal set an average drive time of sixty minutes and a wait time of twenty eight days. The proposed rule appeared in the Federal Register on February 22, 2019, with comments due on March 25, 2019.

Q: Did the MISSION Act create an urgent care benefit?

Yes. Section 105 of the MISSION Act inserted section 1725A into title 38 and created a walk in care benefit that the department proposed to call urgent care in the rulemaking published on January 31, 2019. An eligible veteran was enrolled in department health care and had received care under chapter 17 of title 38 within the twenty four months before the walk in visit. The benefit covered nonemergent, episodic treatment such as influenza like symptoms, sprains, sore throats, and ear pain, furnished by a qualifying provider under contract or agreement with the department, without the prior authorization that section 1703 community care required. A copayment structure set by regulation accompanied the benefit, and the department scheduled the benefit to begin on June 6, 2019.

Q: Did the MISSION Act expand caregiver support to older veterans?

Yes. The Program of Comprehensive Assistance for Family Caregivers, created in 2010, had been limited to caregivers of veterans with a serious injury incurred or aggravated in the line of duty on or after September 11, 2001. Section 161 of the MISSION Act removed that date line in phases tied to certification of a required information technology system. During the two years after certification, eligibility opened to caregivers of veterans injured on or before May 7, 1975, covering the Vietnam, Korean, and Second World War eras. Two years after certification, eligibility opened to veterans injured between 1975 and September 11, 2001, so that a qualifying serious injury counted without regard to the era in which the injury occurred.

Q: What happened to the MISSION Act facility review commission?

The Asset and Infrastructure Review Commission never met, because the Senate never confirmed any commissioner. Title II of the MISSION Act created the nine member commission, modeled on military base closure procedure, to review department recommendations on modernization and realignment of Veterans Health Administration facilities. President Joseph Biden transmitted eight nominations in March 2022, after the department released its recommendations on March 14, 2022. On June 27, 2022, twelve senators announced that the process lacked support and would not move forward. No nomination received a confirmation hearing or a vote during 2022, and the commission was never seated. The review machinery was nullified by inaction rather than by repeal.

Q: How did Congress vote on the MISSION Act?

The MISSION Act passed both chambers by large bipartisan majorities in May 2018. The House Committee on Veterans Affairs ordered the bill reported on May 8, 2018 by a vote of 20 to 2, and the House passed the measure on May 16, 2018 by a recorded vote of 347 to 70, recorded as Roll Number 189. The House text traveled as an amendment to Senate bill 2372. The Senate invoked cloture on the motion to concur on May 22, 2018 by a vote of 91 to 4, and agreed to the House amendment on May 23, 2018 by a vote of 92 to 5, recorded as Record Vote Number 106. The enrolled bill reached the President on June 5, 2018, and the signing followed on June 6, 2018, when the measure became Public Law 115-182.

Q: Did the MISSION Act replace the Choice Program?

Yes. The MISSION Act replaced the temporary Veterans Choice Program, created by the Veterans Access, Choice, and Accountability Act of 2014, with the permanent Veterans Community Care Program at section 1703 of title 38. Section 143 of the MISSION Act scheduled termination of the Choice Program for June 6, 2019, one year after enactment, to coincide with the operation of the replacement program. Section 510 carried 5.2 billion dollars for the Veterans Choice Fund to keep the older program funded during the transition. The replacement was not a clean break for every veteran, because one of the six new eligibility criteria grandfathered protection for veterans who had held distance based Choice eligibility on June 5, 2018 and continued to meet the conditions attached to that protection.

Q: Can a veteran choose any private doctor under the MISSION Act?

No. Community care under the MISSION Act was care furnished through a provider specified under section 1703 of title 38, a category reaching Medicare participating providers, the Department of Defense, the Indian Health Service, federally qualified health centers, and other providers meeting criteria established by the Secretary. Eligibility under one of the six criteria created an election to receive care from a specified provider, not an open entitlement to select any physician in private practice. The department authorization process stood between eligibility and a covered appointment, and the authorization covered a defined episode of care from the specified provider. Care obtained from a provider outside that structure, or beyond the authorized episode, sat outside the program payment commitment that the statute created.

Q: Who decides whether a veteran qualifies for community care?

The decision maker depended on the criterion invoked under section 1703 of title 38. Department staff made the determination for most criteria, testing a request against the availability of a service, the presence of a full service facility in the state of residence, grandfathered Choice Program records, and the designated access standards at the moment of scheduling. The best medical interest criterion required agreement between the veteran and the referring clinician, resting on criteria the Secretary developed covering distance, frequency, timeliness, and burden. The quality criterion rested with the Secretary, who designated the standards, measured a medical service line against those standards, and determined noncompliance centrally. No criterion allowed a veteran to make a binding qualification decision alone.

Q: Does the MISSION Act charge copayments for community care?

The MISSION Act aligned the cost borne by a veteran for community care with the cost that would have applied to department care, so the financial terms of an episode did not shift with the administrative label attached to the authorization. For the walk in benefit under section 1725A of title 38, the statute gave the Secretary structured discretion to require a copayment for each episode, tied to whether the veteran owed copayments under title 38 generally. The department proposal of January 31, 2019 set a regular copayment of 30 dollars, charged to veterans in priority groups 1 through 6 only after three visits in a calendar year and to veterans in priority groups 7 and 8 for every visit, with no copayment for a visit consisting solely of influenza immunization.

Q: How does a veteran schedule a community care appointment under the MISSION Act?

Scheduling followed a sequence that began with contact and determination. The veteran requested care through the department, department staff or, for the best medical interest criterion, the veteran and the referring clinician together determined whether a criterion under section 1703 of title 38 was met, and the veteran supplied information the program required, including information on any other health plan coverage. The department then issued the authorization that section 1703 made a precondition of covered care, and referral and scheduling followed. Section 1703 obliged the Secretary to coordinate the furnishing of care, including timely scheduling of appointments and a mechanism for receiving medical records from community providers. The Secretary held responsibility, to the extent practicable, for scheduling appointments, and self scheduling through advanced technology operated inside an authorized referral rather than as a substitute for one.

Q: What did the MISSION Act do about telehealth across state lines?

Telehealth practice across state lines formed part of the combined text that reached enactment on June 6, 2018, drawn from the House and Senate measures that the final statute merged with the community care core. The provision addressed a structural obstacle in department care: a clinician delivering treatment by telehealth to a veteran in another state confronted state licensing boundaries that had been drawn for in person practice. By legislating on telehealth practice across state lines at the federal level, the MISSION Act supported delivery of department care to veterans whose nearest appropriate clinician sat in a different state, a matter of particular weight for rural veterans and for specialties concentrated in a small number of department facilities. Telehealth also appeared in the caregiver programs, where education and support services reached family caregivers through telehealth and other technologies under section 1720G of title 38.

Q: What did the MISSION Act change for VA clinician recruitment?

Title III of the MISSION Act, titled Improvements to Recruitment of Health Care Professionals, attacked the economics that shaped whether clinicians chose department employment. Section 301 provided designated scholarships for physicians and dentists under the Health Professional Scholarship Program, tied to later service. Section 302 raised the ceiling under the Education Debt Reduction Program from 120,000 dollars to 200,000 dollars over five years, and the annual amount from 24,000 dollars to 40,000 dollars. Section 303 established a Specialty Education Loan Repayment Program for physicians in specialties where recruitment presented particular difficulty. Section 304 created the Veterans Healing Veterans Medical Access and Scholarship Program. Section 305 addressed bonuses for recruitment, relocation, and retention, and section 306 included Vet Center employees in the Education Debt Reduction Program, closing a gap that had left readjustment counseling staff outside a benefit available elsewhere in the department.

Q: What is the grandfather clause in the MISSION Act?

The grandfather clause was the third of the six eligibility criteria in section 1703 of title 38, and the only criterion defined by reference to a repealed program and a fixed date. A veteran qualified by having held distance based eligibility under the Choice Program on June 5, 2018, the day before enactment, and by continuing to reside in a location that would qualify under the incorporated forty mile rule. A veteran residing in one of the five states of lowest population density under the 2010 census, identified by regulation as Alaska, Montana, North Dakota, South Dakota, and Wyoming, held the protection on residence alone. A veteran outside those states also had to have received care under title 38 in the year before enactment and to seek care within two years of enactment, before June 6, 2020.

Q: How are community care providers paid under the MISSION Act?

Consolidation gave community providers one claims and payment relationship with the department in place of the divided arrangements that had preceded the MISSION Act. Under the older authorities, a provider treating veterans could face different reimbursement methods, different payment routes, and different administrative counterparts depending on the authority under which an episode had been authorized, and late or disputed payment under one program discouraged participation in others. The statute answered through structure and through standards. Structure placed payment for community care inside the single Veterans Community Care Program, so a provider dealt with one purchaser operating under one set of program rules. Standards appeared in provisions of the act that required prompt payment practices for community care claims. Payment flowed for authorized episodes of care, and an episode obtained without department authorization sat outside the program payment commitment.

Q: What quality standards apply to VA service lines under the MISSION Act?

The sixth eligibility criterion in section 1703 of title 38 rested on quality standards that the Secretary was directed to establish under section 1703C for department medical service lines. The Secretary measured the timeliness of a service line at a facility by comparing that line with the same medical service line at different department facilities, and measured quality by comparing that line with two or more distinct and appropriate quality measures at non department medical service lines. Where the Secretary determined that a service line was not providing care that complied with the standards, the Secretary could furnish the care through a specified community provider. Congress capped the authority at three medical service lines at any one facility and thirty six nationally at one time, required annual publication in the Federal Register, and ended the authority for a line when remediation under section 1706A was complete.

Q: Did the MISSION Act change VA construction and leasing?

Yes, although the construction and leasing provisions operated beside the facility review commission rather than through the commission. Subtitle B of Title II contained three sections independent of the commission process. Section 211 required improvement in the training of construction personnel. Section 212 required a review of enhanced use leases, the arrangements under which department property could be leased for purposes compatible with the department mission. Section 213 required an assessment of health care furnished to veterans who lived in the Pacific territories. Elsewhere in the statute, section 503 revised the definition of a major medical facility project and section 504 authorized specified major medical facility projects. The Asset and Infrastructure Review Account under section 206 was designed to cover alteration, acquisition, leasing, construction, and disposition connected with commission recommendations, and that account went unused for any recommendation because the commission never sat.

Q: What support does the MISSION Act offer caregivers outside the stipend program?

The caregiver programs under section 1720G of title 38 supplied substantial support apart from the monthly stipend paid to a designated primary family caregiver. The Program of General Caregiver Support Services offered education on administering personal care, delivered in person, on an internet website, and through telehealth, together with counseling, respite care of not less than 30 days annually, and information about support available from other public, private, and nonprofit agencies. The comprehensive program added instruction, preparation, and training for approved family caregivers, ongoing technical support for routine, emergency, and specialized caregiving needs, counseling, and lodging and subsistence for covered travel. A designated primary family caregiver also received mental health services, respite care including 24 hour care, and medical care under section 1781 through CHAMPVA where no other coverage applied. Section 161 of the MISSION Act added financial planning services and legal services relating to the needs of injured veterans and caregivers.

Q: How much did the MISSION Act appropriate to keep the Choice Program running?

Section 510 of the MISSION Act authorized and appropriated 5.2 billion dollars, deposited in the Veterans Choice Fund established under section 802 of the Veterans Access, Choice, and Accountability Act of 2014, and made the amount available for obligation or expenditure without fiscal year limitation. The Congressional Budget Office, as summarized by the Congressional Research Service, expected the amount to keep the Choice Program funded until about the first half of calendar year 2019. The bridge followed two emergency infusions during 2017, when Congress appropriated 2.1 billion dollars in August 2017 as the fund faced exhaustion and a further 2.1 billion dollars in December 2017. Department officials had warned during the spring of 2018 that Choice funding could run out around the end of May 2018, before a successor program could be enacted and built, and the bridge kept veterans in the middle of episodes of care from facing a funding lapse during the changeover.