38 U.S.C. § 8104 — Congressional approval of certain medical facility acquisitions

submitted 47 years ago by Pub. L. 96-22 to r/title-38-VETERANS-BENEFITS · 2,318 words · no verdicts yet

in plain englishAI-generated · not legal advice

This law makes Congress approve big VA medical facility projects and leases before money is spent, so facilities go where they're most needed. The VA must first give Congress a detailed cost and needs report, and must later report cost overruns, fund shifts, and new lease terms. Smaller planning expenses and purchase-option exercises don't need this approval.

(a) Purpose and funding requirement. This subsection lets Congress make sure medical facilities are spread fairly around the country, weighing how urgently each area needs one. The VA can't spend money — other than for early planning and design — on a "major medical facility project" unless Congress has specifically authorized that project by law, or on a "major medical facility lease" unless both the Senate and House Veterans' Affairs Committees pass resolutions approving it. A "major medical facility project" means building, changing, or acquiring a medical facility costing more than a set dollar threshold, but not property swaps, routine maintenance, or a shared federal facility where VA's share is below that threshold. A "major medical facility lease" means a lease for a new medical facility, approved through the General Services Administration, at or above a GSA rent threshold, but not a shared federal facility lease below that threshold. That threshold starts at $30,000,000 and the Secretary may adjust it yearly to reflect rising construction costs, using GSA or Labor Department cost indexes; if costs didn't rise, the Secretary can't raise it. Any adjustment must be published in the Federal Register, with 30 days' notice to the relevant House and Senate committees beforehand, and scheduled so VA budget requests line up with the adjusted threshold. (b) Prospectus requirements. Whenever the President or Secretary asks Congress to fund a major medical facility project, the Secretary must give each relevant committee, the same day, a detailed prospectus covering: a full cost estimate (construction, activation, alterations, staffing, and ancillary costs), including whether buying, leasing, or resource-sharing with Defense was considered; demographic and workload data projected 5, 10, and 20 years out; projected operating costs over those same periods; the project's priority score and, if funded ahead of higher-scored projects, why; and, for new or replacement facilities, cost and cost-benefit comparisons for every alternative considered and why the chosen option is best. For a major medical facility lease request, the prospectus must instead cover a description of the facility, a cost estimate, an energy-performance estimate, workload data over 5, 10, and 20 years, and a detailed analysis of how the lease follows federal budget rules (OMB Circular A-11 and the Anti-Deficiency Act), including its classification, budget impact, and cost calculations. (c) Cost overruns and audits. At least 30 days before spending money that would push a project's total cost more than 10% over what Congress approved, the Secretary must notify the committees and explain why. The Secretary must also arrange an outside forensic audit of any major or "super" construction project whose costs run more than 25% over the original budget request, and a separate audit specifically of the medical center construction project in Aurora, Colorado. (d) Using funds for a different purpose. If the Secretary wants to use money for something other than what it was appropriated for, the Secretary must promptly notify each committee in writing, with details and reasons — except that unspent "bid savings" in the major-projects construction account can only be shifted to other already-authorized major construction projects, with notice to the committees showing where the savings came from, that project's status, where the savings are going, and how much. The Secretary can't use bid-savings money to expand what a project is for unless a new law specifically allows it, after notifying the committees of the details. (e) Gifts. The Secretary may accept gifts or donations for the purposes of this subchapter. (f) Advance planning cap. The Secretary can't spend more than $500,000 from the Advance Planning Fund on designing or developing a major medical facility project until reporting the planned spending to the committees and waiting 30 days. (g) Exception. That $500,000 cap doesn't apply to a project Congress has already authorized funding for. (h) Lease notice and reporting. At least 30 days before signing a major medical facility lease, the Secretary must give the relevant committees notice of the plan, a detailed lease summary, an explanation of differences from the earlier prospectus, and a budget-compliance analysis. Committees must keep that information as confidential as the law requires of the Secretary. Within 30 days after signing the lease, the Secretary must report any real differences between the final lease and the earlier proposal. (i) Interim leasing. Even without the usual committee-approval process, the Secretary may take interim leasing actions for major medical facility leases already approved under this section where a replacement-lease prospectus has been sent to Congress, and for replacement leases that don't need this section's approval where a prospectus has been sent. "Interim leasing actions" has the meaning the GSA Administrator gives it. (j) Purchase options. The Secretary may spend money to exercise a purchase option included in a major medical facility lease.

the actual law source: uscode.house.gov ↗public domain

(a)

(1)

The purpose of this subsection is to enable Congress to ensure the equitable distribution of medical facilities throughout the United States, taking into consideration the comparative urgency of the need for the services to be provided in the case of each particular facility.

(2)

(A)

No funds may be appropriated for any fiscal year, and the Secretary may not obligate or expend funds (other than for advance planning and design), for any major medical facility project unless funds for that project have been specifically authorized by law.

(B)

No funds may be appropriated for any fiscal year, and the Secretary may not obligate or expend funds (other than for advance planning and design), for any major medical facility lease unless the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives each adopt a resolution approving the lease.

(3)

For purposes of this subsection:

(A)

The term “major medical facility project” means a project for the construction, alteration, or acquisition of a medical facility involving a total expenditure of more than the amount specified in paragraph (4), but such term does not include an acquisition by exchange, nonrecurring maintenance projects of the Department, or the construction, alteration, or acquisition of a shared Federal medical facility for which the Department’s estimated share of the project costs does not exceed the amount specified in paragraph (4).

(B)

The term “major medical facility lease”—

(i)

means a lease for space for use as a new medical facility approved through the General Services Administration under section 3307(a) of title 40 at an average annual rent equal to or greater than the appropriate dollar threshold described in such section, which shall be subject to annual adjustment in accordance with section 3307(h) of such title; and

(ii)

does not include a lease for space for use as a shared Federal medical facility for which the Department’s estimated share of the lease costs does not exceed such dollar threshold.

(4)

(A)

The amount specified in this paragraph is $30,000,000, as adjusted pursuant to this paragraph.

(B)

(i)

The Secretary may annually adjust the amount specified in this paragraph to reflect a percentage increase, if any, in construction costs during the prior calendar year, as determined by—

(I)

the relevant composite construction and lease cost indices pursuant to section 3307(h) of title 40, or any similar successor index developed by the Administrator of the General Services Administration; or

(II)

the Producer Price Index for New Health Care Building Construction published by the Bureau of Labor Statistics of the Department of Labor, or any similar successor index developed by the Secretary of Labor.

(ii)

If there is no percentage increase in construction costs determined as described in clause (i) for a calendar year, the Secretary may not adjust the amount specified in subparagraph (A) for that year.

(C)

If the Secretary adjusts the amount specified in this paragraph, the Secretary shall publish a notice of such adjustment in the Federal Register.

(D)

Not later than 30 days before adjusting the amount specified in this paragraph, the Secretary shall notify the Committee on Veterans’ Affairs and the Committee on Appropriations of the Senate and the Committee on Veterans’ Affairs and the Committee on Appropriations of the House of Representatives.

(E)

The Secretary shall determine a logical schedule for adjustments under this paragraph to take effect so that the amounts for and types of construction projects requested by the Department in the budget of the President under section 1105(a) of title 31 are consistent with the threshold for construction projects as so adjusted.

(b)

(1)

Whenever the President or the Secretary submit 1 to Congress a request for the funding of a major medical facility project (as defined in subsection (a)(3)(A)), the Secretary shall submit to each committee, on the same day, a prospectus of the proposed medical facility. Any such prospectus shall include the following:

(A)

A detailed estimate of the total costs of the medical facility to be constructed, altered, or otherwise acquired under this subchapter, including a description of the location of such facility and, in the case of a prospectus proposing the construction of a new or replacement medical facility, a detailed report of the consideration that was given to acquiring an existing facility by lease or purchase and to the sharing of health-care resources with the Department of Defense under section 8111 of this title. Such detailed estimate shall include an identification of each of the following:

(i)

Total construction costs.

(ii)

Activation costs.

(iii)

Special purpose alterations (lump-sum payment) costs.

(iv)

Number of personnel.

(v)

Total costs of ancillary services, equipment, and all other items.

(B)

Demographic data applicable to such facility, including information on projected changes in the population of veterans to be served by the facility over a five-year period, a ten-year period, and a twenty-year period.

(C)

Current and projected workload and utilization data regarding the facility, including information on projected changes in workload and utilization over a five-year period, a ten-year period, and a twenty-year period.

(D)

Projected operating costs of the facility, including both recurring and non-recurring costs (including and identifying both recurring and non-recurring costs (including activation costs and total costs of ancillary services, equipment and all other items)) over a five-year period, a ten-year period, and a twenty-year period.

(E)

The priority score assigned to the project under the Department’s prioritization methodology and, if the project is being proposed for funding before a project with a higher score, a specific explanation of the factors other than the priority score that were considered and the basis on which the project is proposed for funding ahead of projects with higher priority scores.

(F)

In the case of a prospectus proposing the construction of a new or replacement medical facility, each of the following:

(i)

A detailed estimate of the total costs (including total construction costs, activation costs, special purpose alterations (lump-sum payment) costs, number of personnel and total costs of ancillary services, equipment and all other items) for each alternative to construction of the facility that was considered.

(ii)

A comparison of total costs to total benefits for each such alternative.

(iii)

An explanation of why the preferred alternative is the most effective means to achieve the stated project goals and the most cost-effective alternative.

(2)

Whenever the President or the Secretary submit ¹ to Congress a request for the funding of a major medical facility lease (as defined in subsection (a)(3)(B)), the Secretary shall submit to each committee, on the same day, a prospectus of the proposed medical facility. Any such prospectus shall include the following:

(A)

A description of the facility to be leased.

(B)

An estimate of the cost to the Federal Government of the facility to be leased.

(C)

An estimate of the energy performance of the proposed lease space, to include a description of anticipated utilization of renewable energy, energy efficient and climate resilient elements, and related matters.

(D)

Current and projected workload and utilization data regarding the facility to be leased, including information on projected changes in workload and utilization over a five-year period, a ten-year period, and a twenty-year period.

(E)

A detailed analysis of how the lease is expected to comply with Office of Management and Budget Circular A–11 and section 1341 of title 31 (commonly referred to as the “Anti-Deficiency Act”). Any such analysis shall include—

(i)

an analysis of the classification of the lease as a “lease purchase”, a “capital lease”, or an “operating lease” as those terms are defined in Office of Management and Budget Circular A–11;

(ii)

an analysis of the obligation of budgetary resources associated with the lease; and

(iii)

an analysis of the methodology used in determining the asset cost, fair market value, and cancellation costs of the lease.

(c)

(1)

Not less than 30 days before obligating funds for a major medical facility project approved by a law described in subsection (a)(2) of this section in an amount that would cause the total amount obligated for that project to exceed the amount specified in the law for that project (or would add to total obligations exceeding such specified amount) by more than 10 percent, the Secretary shall provide the committees with notice of the Secretary’s intention to do so and the reasons for the specified amount being exceeded.

(2)

The Secretary shall—

(A)

enter into a contract or agreement with an appropriate non-department Federal entity with the ability to conduct forensic audits on medical facility projects for the conduct of an external forensic audit of the expenditures relating to any major medical facility or super construction project for which the total expenditures exceed the amount requested in the initial budget request for the project submitted to Congress under section 1105 of title 31 by more than 25 percent; and

(B)

(d)

(1)

Except as provided in paragraph (2), in any case in which the Secretary proposes that funds be used for a purpose other than the purpose for which such funds were appropriated, the Secretary shall promptly notify each committee, in writing, of the particulars involved and the reasons why such funds were not used for the purpose for which appropriated.

(2)

(A)

In any fiscal year, unobligated amounts in the Construction, Major Projects account that are a direct result of bid savings from a major construction project may only be obligated for major construction projects authorized for that fiscal year or a previous fiscal year.

(B)

Whenever the Secretary obligates amounts for a major construction project under subparagraph (A), the Secretary shall submit to the Committee on Veterans’ Affairs and the Committee on Appropriations of the Senate and the Committee on Veterans’ Affairs and the Committee on Appropriations of the House of Representatives notice of the following:

(i)

The major construction project that is the source of the bid savings.

(ii)

If the major construction project that is the source of the bid savings is not complete—

(I)

the amount already obligated by the Department or available in the project reserve for such project;

(II)

the percentage of such project that has been completed; and

(III)

the amount available to the Department to complete such project.

(iii)

The other major construction project for which the bid savings amounts are being obligated.

(iv)

The bid savings amounts being obligated for such other major construction project.

(C)

The Secretary may not obligate an amount under subparagraph (A) to expand the purpose of a major construction project except pursuant to a provision of law enacted after the date on which the Secretary submits to the committees described in subparagraph (B) notice of the following:

(i)

The major construction project that is the source of the bid savings.

(ii)

The major construction project for which the Secretary intends to expand the purpose.

(iii)

A description of such expansion of purpose.

(iv)

The amounts the Secretary intends to obligate to expand the purpose.

(e)

The Secretary may accept gifts or donations for any of the purposes of this subchapter.

(f)

The Secretary may not obligate funds in an amount in excess of $500,000 from the Advance Planning Fund of the Department toward design or development of a major medical facility project (as defined in subsection (a)(3)(A)) until—

(1)

the Secretary submits to the committees a report on the proposed obligation; and

(2)

a period of 30 days has passed after the date on which the report is received by the committees.

(g)

The limitation in subsection (f) does not apply to a project for which funds have been authorized by law in accordance with subsection (a)(2).

(h)

(1)

Not less than 30 days before entering into a major medical facility lease, the Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and the House of Representatives—

(A)

notice of the Secretary’s intention to enter into the lease;

(B)

a detailed summary of the proposed lease;

(C)

a description and analysis of any differences between the prospectus submitted pursuant to subsection (b) and the proposed lease; and

(D)

a scoring analysis demonstrating that the proposed lease fully complies with Office of Management and Budget Circular A–11.

(2)

Each committee described in paragraph (1) shall ensure that any information submitted to the committee under such paragraph is treated by the committee with the same level of confidentiality as is required by law of the Secretary and subject to the same statutory penalties for unauthorized disclosure or use as the Secretary.

(3)

Not more than 30 days after entering into a major medical facility lease, the Secretary shall submit to each committee described in paragraph (1) a report on any material differences between the lease that was entered into and the proposed lease described under such paragraph, including how the lease that was entered into changes the previously submitted scoring analysis described in subparagraph (D) of such paragraph.

(i)

(1)

Notwithstanding subsection (a)(2)(B), the Secretary may carry out interim leasing actions as the Secretary considers necessary for the following leases:

(A)

Major medical facility leases (as defined in subsection (a)(3)(B)) approved pursuant to this section and for which a prospectus for a replacement lease has been submitted to Congress pursuant to subsection (b)(2).

(B)

Replacement leases that do not require approval under this section and for which a prospectus has been submitted to Congress pursuant to subsection (b)(2).

(2)

In this subsection, the term “interim leasing actions” has the meaning given that term by the Administrator of the General Services Administration.

(j)

The Secretary may obligate and expend funds to exercise a purchase option included in any major medical facility lease (as defined in subsection (a)(3)(B)).

Source credit: (Added Pub. L. 96–22, title III, § 301(a), June 13, 1979, 93 Stat. 56, § 5004; amended Pub. L. 99–166, title III, §§ 301, 303, Dec. 3, 1985, 99 Stat. 954, 955; Pub. L. 99–576, title II, § 221(b), Oct. 28, 1986, 100 Stat. 3259; Pub. L. 100–322, title IV, § 422, May 20, 1988, 102 Stat. 553; renumbered § 8104 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 102–405, title III, § 301(a), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 103–79, § 3(a), Aug. 13, 1993, 107 Stat. 771; Pub. L. 104–262, title II, §§ 205(a), 206(a), (c), Oct. 9, 1996, 110 Stat. 3189, 3190; Pub. L. 105–368, title VII, § 704, Nov. 11, 1998, 112 Stat. 3350; Pub. L. 108–170, title II, § 201, Dec. 6, 2003, 117 Stat. 2047; Pub. L. 108–422, title IV, § 416, Nov. 30, 2004, 118 Stat. 2393; Pub. L. 109–461, title VIII, § 812, Dec. 22, 2006, 120 Stat. 3447; Pub. L. 110–387, title VII, § 705, Oct. 10, 2008, 122 Stat. 4138; Pub. L. 111–275, title IX, § 905, Oct. 13, 2010, 124 Stat. 2895; Pub. L. 112–37, §§ 6, 7, Oct. 5, 2011, 125 Stat. 394, 396; Pub. L. 113–146, title VI, § 602(c), Aug. 7, 2014, 128 Stat. 1794; Pub. L. 114–315, title VIII, § 801(b), (c), Dec. 16, 2016, 130 Stat. 1590; Pub. L. 115–182, title V, § 503(b), June 6, 2018, 132 Stat. 1476; Pub. L. 116–61, § 6(9), Sept. 30, 2019, 133 Stat. 1117; Pub. L. 117–168, title VII, § 703(a)–(e), Aug. 10, 2022, 136 Stat. 1797, 1798; Pub. L. 117–263, div. E, title LI, § 5124(b), Dec. 23, 2022, 136 Stat. 3211; Pub. L. 118–31, div. E, title L, § 5001, Dec. 22, 2023, 137 Stat. 930.)

history & why it existsrecord from the source credit

1979Enacted · Pub. L. 96-22 · 93 Stat. 56
1985Amended · Pub. L. 99-166 · 99 Stat. 954, 955
1986Amended · Pub. L. 99-576 · 100 Stat. 3259
1988Amended · Pub. L. 100-322 · 102 Stat. 553
1991Amended · Pub. L. 102-40 · 105 Stat. 238, 239
1991Amended · Pub. L. 102-83 · 105 Stat. 404, 405
1992Amended · Pub. L. 102-405 · 106 Stat. 1984
1993Amended · Pub. L. 103-79 · 107 Stat. 771
1996Amended · Pub. L. 104-262 · 110 Stat. 3189, 3190
1998Amended · Pub. L. 105-368 · 112 Stat. 3350
2003Amended · Pub. L. 108-170 · 117 Stat. 2047
2004Amended · Pub. L. 108-422 · 118 Stat. 2393
2006Amended · Pub. L. 109-461 · 120 Stat. 3447
2008Amended · Pub. L. 110-387 · 122 Stat. 4138
2010Amended · Pub. L. 111-275 · 124 Stat. 2895
2011Amended · Pub. L. 112-37 · 125 Stat. 394, 396
2014Amended · Pub. L. 113-146 · 128 Stat. 1794
2016Amended · Pub. L. 114-315 · 130 Stat. 1590
2018Amended · Pub. L. 115-182 · 132 Stat. 1476
2019Amended · Pub. L. 116-61 · 133 Stat. 1117
2022Amended · Pub. L. 117-168 · 136 Stat. 1797, 1798
2022Amended · Pub. L. 117-263 · 136 Stat. 3211
2023Amended · Pub. L. 118-31 · 137 Stat. 930

A history note hasn’t been published yet. The record shows enactment by Pub. L. 96-22 on 1979-06-13.

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