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Legislative Division Update 05-13-2011


2012 Defense Authorization Passes House Panel

On Wednesday, Legislative staff attended a marathon session of the House Armed Services Committee (HASC) spanning more than 16 hours, including breaks for meals and floor votes, on the FY 2012 National Defense Authorization (NDAA) bill. The legislation provides $690 billion for the Department of Defense (DOD) and the national security activities within the Department of Energy for the next fiscal year. It would authorize $553 billion for the Department of Defense's base budget, $119 billion for overseas contingency operations and $18 billion for the Department of Energy's atomic energy defense programs. It passed the committee by a vote of 60-1 shortly after 2:00 am early Thursday morning. Representative John Garamendi (CA-10th) was the only vote of opposition.

Given the size and importance of the bill, the session received a lot of press coverage. The highlights of the coverage follow:

TRICARE - As expected, the committee voted to allow the first bump in TRICARE Prime enrollment fees in more than 15 years. Retirees not yet eligible for Medicare would see a $30-a-year fee increase, to $260, for individual coverage and a $60 hike, to $520, for family coverage. The committee's bill also would allow these fees for retirees to be adjusted each year to keep pace with inflation. But while the Department of Defense wanted the fees indexed to medical inflation nationwide, the committee language would cap any increase to the percentage rise in retired pay made through by the annual COLA or cost-of-living adjustment.

Rep. Howard P. "Buck" McKeon (CA-25th), the new committee chairman, called it a "sensible" approach to TRICARE fees. The committee's final version of the defense authorization bill for fiscal 2012 also would allow co-pays to rise, by $2 or $3, on prescriptions filled in the TRICARE network of retail pharmacies, a move to encourage greater use of TRICARE mail order.

But the bill also would express "the sense of Congress" that career members and their families make "extraordinary sacrifices to protect freedom for all Americans and that those sacrifices constitute pre-payment for health care during retirement." This language has been long sought by military retiree associations to discourage any future Congress from raising health care costs dramatically for military retirees.

[In a press release following passage of the measure National Commander of The American Legion, Jimmie L. Foster, remarked in part, "We are grateful to Congressman McKeon and his colleagues who have remembered, as we do, that our military retirees have given decades of service to our country, risking their lives in combat, often serving under arduous conditions and being separated from their families. Keeping their insurance rates low is one way we can repay them for their honorable service."]

SBP/DIC offset - A surprise in the final version of the bill is a provision to ease the "widow's tax" - or SBP/DIC offset -- for 57,000 surviving military spouses. Surviving spouses of service members who die on active duty, or in retirement as a result of a service-connected injury or ailment, are eligible for tax-free Dependency and Indemnity Compensation (DIC) from the Department of Veterans Affairs. But those also covered by the premium-paid Survivor Benefit Plan see their SBP benefit reduced, dollar for dollar, by DIC, nearly $1200 a month. They have argued for years that the offset is unfair.

Congress so far hasn't found the money, roughly $6 billion over the first 10 years, to eliminate the SBP-DIC offset entirely. Instead, starting in 2007, it authorized a Special Survivor Indemnity Allowance (SSIA) to ease the sting. SSIA now pays $70 a month. It was to rise annually by $10 until it reached $100 in 2014, and then would go away. Congress later voted to beef up and extend SSIA out to 2017. This year's House defense bill would raise SSIA even more and extend its life out to Oct. 1, 2021. Under the revised incremental growth plan, SSIA would be raised to $163 by fiscal 2013, $200 in 2014, $215 in 2015, $282 in 2016 and $314 for fiscal 2017. For fiscal 2018, SSIA would fall to only $9 and then climb gradually back to $27 by fiscal 2021. But these amounts merely are placeholders in the budget, a hopeful sign from the committee that Congress will continue to reduce the SBP-DIC offset in this way as money can be found.

McKeon's $150 million SSIA initiative would be funded in part by accepting the administration plan to curb costs associated with the Uniformed Services Family Health Plan (USFHP). These are former Public Health Service hospitals that provide managed care enrollment to military beneficiaries in six select areas where bases closed. Medicare-eligible retirees using USFHP facilities have not had to enroll in Medicare Part B. But starting Oct. 1, 2012, any USFHP enrollee who reaches age 65 and becomes eligible for Medicare would be bumped from the program. Like aging TRICARE Prime enrollees, they would have to enroll in Medicare Part B and rely on TRICARE for Life as a supplemental plan to Medicare. Medicare-eligible retirees already using USFHP doctors would be grandfathered from this change.

WAR ON TERROR - The bill includes language reauthorizing the president to conduct the War on Terror. Supporters call it an "affirmation" of the original Authorization for Use of Military Force passed shortly after September 11, 2001, which allows the president to fight al-Qaeda. Critics of the "affirmation" say it expands the president's war authority to fight additional groups beyond al Qaeda, noting that it adds the undefined term "associated forces" to the language.

THE F136 RISES AGAIN - The panel voted 54-5 to require DOD to allow testing of the alternate engine for the F-35 Joint Strike Fighter at no cost to the government. HASC Chairman McKeon had persuaded engine makers GE and Rolls-Royce to self-fund the program through fiscal 2012 in the hope of keeping it alive after Congress cut off funding and the Pentagon terminated the contract. Rep. Tom Rooney (FL-16th), who led the drive to cut off funds for the F136, voted for the amendment, saying he didn't object if there was no cost to the government. But another opponent of the program, Rep. Mike Coffman (CO-6th), promised a floor fight against efforts to revive it.

NEW START OVERSIGHT - In a series of mostly party-line votes, the panel adopted amendments aimed at writing into law a deal with President Obama that earned Republican votes to ratify the New START Treaty. One provision would link funding for reductions in deployed weapons required by the treaty to progress toward modernizing the U.S. nuclear arsenal and bar unilateral reductions without congressional approval. Others would bar any agreement limiting U.S. missile defense capabilities unless approved by act of Congress or as part of a treaty ratified by the Senate, and bar the administration from making changes to U.S. nuclear strategy to justify further arms control reductions or to cut costs without notifying Congress and waiting 90 days.

"DON'T ASK, DON'T TELL" - The panel voted 33-27 after a contentious debate to require that the service chiefs sign off on the repeal of "don't ask, don't tell" before gays and lesbians are allowed to serve openly in the military. "I want to make sure the warfighters have a say in this," Rep. Duncan Hunter (CA-52nd) said. Democrats accused amendment supporters of accusing the president, defense secretary and JCS chairman, all of whom have signoff authority under existing law, of being untrustworthy. "If that's the case we've got a lot bigger problems than ‘don't ask, don't tell'," said Rep. Adam Smith (WA-9th), the panel's ranking Democrat. Opponents of the repeal law have been hoping for months that the service chiefs' past reservations about the change would help slow it down. But there‘s almost no chance that will happen - all four chiefs are now publicly backing DOD‘s plans. "Let's be very honest: The military will salute the flag and implement this program," said Rep. Allen West (FL-22nd), who supported the amendment.

The measure will now go to the House floor for debate and final passage, which is expected later this month or in early June. The Senate will then take up the legislation, possibly in late summer and a final bill is expected to be sent to the President's desk for his signature by the fall.

LEGISLATIVE FOCUS FOR THE WEEK: Letters of Support and Legislative Action Alerts. Since the last weekly update, The American Legion has drafted letters of support for the following members and their legislation.

• Rep. Glen Thompson (PA-5th), for a draft bill entitled the "Servicemembers' Telemedicine and E-Health Portability Act (STEP Act)," which would expand DOD's state licensure exemption to allow health care professionals to practice across state borders, as long as they are qualified and practicing within the scope of their authorized federal duties.

• Sen. John D. Rockefeller, IV (WV), for S. 253, a measure that would establish a commission to ensure a suitable observance of the centennial of World War I, as well as designate memorials to the service of the men and women of the United States in that conflict.

• Rep. Joe Courtney (CT-2nd), for draft legislation, entitled "Post 9/11 Troops to Teachers Enhancement Act," which would amend current federal law to allow former active-duty service members who served during the War on Terror to be eligible to participate in the Troops-to-Teachers Program.

• Rep. Harold Rogers (KY-5th), Chairman of the House Appropriations Committee, to express full support for the Gulf War Veterans' Illness Research Program (GWVIRP) within the Congressionally Directed Medical Research Programs (CDMRP).



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