38 USC 8104 - Congressional approval of certain medical facility acquisitions

U.S Code last checked for updates: Nov 22, 2024

§ 8104.

Congressional approval of certain medical facility acquisitions

(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

 So in original. Probably should be “submits”.

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)

(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)).

(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.)

cite as: 38 USC 8104