[House Report 114-815]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-815
======================================================================
ETHICAL PATIENT CARE FOR VETERANS ACT OF 2016
_______
November 14, 2016.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Miller of Florida, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany H.R. 5399]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 5399) to amend title 38, United States Code, to
ensure that physicians of the Department of Veterans Affairs
fulfill the ethical duty to report to State licensing
authorities impaired, incompetent, and unethical health care
activities, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 3
Subcommittee Consideration....................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
Statement of General Performance Goals and Objectives............ 4
New Budget Authority, Entitlement Authority, and Tax Expenditures 4
Earmarks and Tax and Tariff Benefits............................. 4
Committee Cost Estimate.......................................... 4
Congressional Budget Office Estimate............................. 4
Federal Mandates Statement....................................... 5
Advisory Committee Statement..................................... 5
Constitutional Authority Statement............................... 6
Applicability to Legislative Branch.............................. 6
Statement on Duplication of Federal Programs..................... 6
Disclosure of Directed Rulemaking................................ 6
Section-by-Section Analysis of the Legislation................... 6
Changes in Existing Law Made by the Bill as Reported............. 7
Purpose and Summary
H.R. 5399, the ``Ethical Patient Care for Veterans Act of
2016,'' was introduced by Representative David P. Roe of
Tennessee on June 7, 2016. H.R. 5399 would require the
Department of Veterans Affairs (VA) to ensure that each VA
physician is informed of his/her duty to report directly to the
applicable state licensing authority any covered activity
committed by another physician that the physician witnesses or
otherwise discovers.
Background and Need for Legislation
It is a well-established obligation within the medical
community that physicians must report other physicians that
engage in incompetent, unsafe, or unethical behavior that may
put patients at risk to the applicable state licensing body
(SLB) so that appropriate disciplinary action can be taken. In
this regard, the American Medical Association (AMA) Code of
Medical Ethics subchapter 9.4.2, Reporting Incompetent or
Unethical Behaviors by Colleagues, states that, ``[t]he
obligation to report incompetent or unethical conduct that may
put patients at risk is recognized in both the ethical
standards of the profession and in law and physicians should be
able to report such conduct without fear or loss of favor.''\1\
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\1\American Medical Association Code of Medical Ethics, Chapter 9:
Opinions on Professional Self-Regulation, http://www.ama-assn.org/ama/
pub/physician-resources/medical-ethics/code-medical-ethics.page
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Under VA regulations found at 38 C.F.R. Part 47, ``[i]t is
the policy of VA to report to [SLBs] any currently employed
licensed health care professional or separated licensed health
care professional whose clinical practice during VA employment
so significantly failed to meet generally accepted standards of
clinical practice as to raise reasonable concern for the safety
of patients.'' Several examples of actions that meet the
criteria include patient neglect or abandonment; physical or
mental impairment; substance abuse; falsification of
credentials, medical records, or prescriptions; inappropriate
dispensing of drugs; mental, physical, sexual, or verbal abuse
of a patient; or unethical or moral turpitude. Veterans Health
Administration (VHA) Handbook 1100.18, Reporting and Responding
to State Licensing Boards, contains the requirements for health
care facilities' procedures regarding reporting and responding
to SLBs.\2\ The Handbook calls for multiple levels of review at
the local, regional, and national level. The problem is that
this process can cause delays of months or even years that put
patients at unacceptable risk.
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\2\VHA Handbook 1100.18 Reporting and Responding to State Licensing
Boards
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For example, VA's policies, procedures, and practices with
regard to reporting inappropriate behavior to SLBs have come
under scrutiny in response to an incident at the Tomah,
Wisconsin VA Medical Center. The VA Office of the Inspector
General (IG) conducted a review of alleged inappropriate
prescription of controlled substances and alleged abuse of
authority in response to a number of allegations made
throughout 2011. According to media reports, veterans commonly
referred to the Tomah VA Medical Center as ``Candy Land'' and
to the then-Chief of Staff--Dr. David Houlihan--as the ``Candy
Man'' due of the high number of opioid prescriptions that were
routinely made available to veteran patients at that
facility.\3\ The IG administratively closed its investigation
in 2014 after finding that the amounts of opioids prescribed by
Dr. Houlihan and select other providers were ``at considerable
variance'' compared to the amounts of opioids prescribed by
other VA medical facilities in the same region and
substantiating that there were, ``widely held beliefs and
concerns among pharmacy staff and among some other staff,'' of
abuse of authority, intimidation, and retaliation on the part
of the Chief of Staff when controlled substance prescription
practices were questioned.\4\ An internal VA investigation into
these issues was initiated in January 2015 after the IG's
review was made public. That internal investigation
substantiated unsafe clinical practices in areas such as pain
management and psychiatric care and found that, ``an apparent
culture of fear at the [Tomah VA Medical Center] compromised
patient care and impacted staff satisfaction and morale.''\5\
Dr. Houlihan was eventually terminated by VA for failure to
provide appropriate medical care to some patients in his care.
However, VA did not notify the Wisconsin Medical Examining
Board of the instances of inadequate care that Dr. Houlihan had
provided so that the Board could take licensing action against
him until after he had resumed private practice.
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\3\Chicago Tribune, ``Veterans: VA hospital nicknamed `Candy Land'
because painkillers given out freely,'' January 9, 2015. http://
www.chicagotribune.com/news/ct-tomah-va-hospital-nw-20150109-story.html
\4\VA Office of the Inspector General, ''Administrative Closure--
Alleged Inappropriate Prescribing of Controlled Substances and Alleged
Abuse of Authority, Tomah VA Medical Center, Tomah, WI.'' http://
www.va.gov/oig/pubs/VAOIG-11-04212-127.pdf
\5\Summary of Phase One Clinical Review Findings, Tomah, WI, March
10, 2015, http://www.va.gov/opa/docs/
MEMO_Summary_of_Phase_One_Clinical_Review_Findings_Tomah_WI.pdf
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The Committee believes that VA's existing policies
regarding reporting inappropriate behavior to SLBs or other
relevant bodies must allow for direct reporting by physicians
to SLBs for impaired, incompetent, or unethical medical care
that puts patients at risk. As such, Section 2 of the bill
would require VA to ensure that each VA physician is informed
of his/her duty to report directly to the applicable state
licensing authority any covered activity committed by another
physician that the physician witnesses or otherwise discovers
within five days. A ``covered activity'' is defined as any
activity occurring in a VA medical facility that consists of or
causes the provision of impaired, incompetent, or unethical
health care that requires direct reporting under the AMA Code
of Medical Ethics.
Hearings
There were no Full Committee or Subcommittee hearings held
on H.R. 5399.
Subcommittee Consideration
There was no Subcommittee markup of H.R. 5399.
Committee Consideration
On September 21, 2016, the Full Committee met in open
markup session, a quorum being present, and ordered H.R. 5399
reported favorably to the House of Representatives by voice
vote. A motion by Representative Mark Takano of California to
report H.R. 5399 favorably to the House of Representatives was
agreed to by voice vote.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, there were no recorded votes
taken on amendments or in connection with ordering H.R. 5399
reported to the House.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are to ensure the Secretary of Veterans
Affairs clarifies that VA physicians have a duty to report
impaired, incompetent, or unethical behavior committed by
another physician to applicable State licensing authorities.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Earmarks and Tax and Tariff Benefits
H.R. 5399 does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the cost estimate on H.R.
5399 prepared by the Director of the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974.
Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 5399 provided by the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 13, 2016.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5399, the Ethical
Patient Care for Veterans Act of 2016.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Ann E.
Futrell.
Sincerely,
Keith Hall.
Enclosure.
H.R. 5399--Ethical Patient Care for Veterans Act of 2016
H.R. 5399 would require physicians employed by the
Department of Veterans Affairs (VA) to report unethical health
care practices that take place at VA medical facilities to the
appropriate state licensing authority within five days of
occurrence. The bill also would require VA to inform physicians
of that responsibility.
Under current law, VA monitors and evaluates the quality of
health care through its quality-assurance program. Under that
program, physicians may confidentially submit reports of
unethical practices that they witness. CBO expects that VA
would distribute information about the new reporting
requirement through electronic correspondence. As a result, CBO
estimates that implementing H.R. 5399 would have insignificant
costs for administrative activities over the 2017-2021 period;
that spending would be subject to the availability of
appropriated funds.
Enacting the legislation would not affect direct spending
or revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 5399 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
H.R. 5399 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Ann E. Futrell.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 5399 prepared by the Director of the
Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
5399.
Statement of Constitutional Authority
Pursuant to Article I, section 8 of the United States
Constitution, H.R. 5399 is authorized by Congress' power to
``provide for the common Defense and general Welfare of the
United States.''
Applicability to Legislative Branch
The Committee finds that H.R. 5399 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to section 3(g) of H. Res. 5, 114th Cong. (2015),
the Committee finds that no provision of H.R. 5399 establishes
or reauthorizes a program of the Federal Government known to be
duplicative of another Federal program, a program that was
included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most
recent Catalog of Federal Domestic Assistance.
Disclosure of Directed Rulemaking
Pursuant to section 3(i) of H. Res. 5, 114th Cong. (2015),
the Committee estimates that H.R. 5399 contains no directed
rule making that would require the Secretary to prescribe
regulations.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 of the bill would provide the short title for
H.R. 5399, as the ``Ethical Patient Care for Veterans Act of
2016.''
Section 2. Duty to report impaired, incompetent, and unethical health
care activities
Section 2(a) of the bill would amend Subchapter II of
chapter 74 of title 38, U.S.C., by adding a new section,
``7330B. Duty to report impaired, incompetent, and unethical
health care activities.'' 7330B(a) would require VA to ensure
that each VA physician is informed of the duty to directly
report to the applicable licensing authority any ``covered''
activity in which that physician witnesses another VA physician
committing or otherwise directly discovers. 7330B(b) would
require each VA physician to make a direct report to the State
licensing authority no later than five days after witnessing or
otherwise directly discovering a covered activity. 7330B(c)
would define a ``covered activity'' to mean any activity
occurring in a VA medical facility that consists of or causes
the provision of impaired, incompetent, or unethical health
care that requires direct reporting under opinion number 9.031
of the Code of Medical Ethics of the American Medical
Association, and the term ``physician'' to include any
contractor who is a physician at a VA medical facility.
Section 2(b) of the bill would amend the table of contents
at the beginning of chapter 74 by inserting ``7330B. Duty to
report impaired, incompetent, and unethical health care
activities.'' after 7330A.
Section 2(c) of the bill would amend section 7462(a)(1)(A)
of title 38 U.S.C. by inserting ``, including pursuant to
section 7330B(c) of this title'' before the semicolon.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
* * * * * * *
CHAPTER 74--VETERANS HEALTH ADMINISTRATION - PERSONNEL
SUBCHAPTER I--APPOINTMENTS
Sec.
7401. Appointments in Veterans Health Administration.
* * * * * * *
SUBCHAPTER II--COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION
* * * * * * *
7330B. Duty to report impaired, incompetent, and unethical health care
activities.
* * * * * * *
SUBCHAPTER II--COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION
* * * * * * *
Sec. 7330B. Duty to report impaired, incompetent, and unethical health
care activities
(a) Reporting to State Licensing Authority.--In addition to
confidential reporting under the quality-assurance program
pursuant to section 7311(b)(4) of this title and any other
reporting authorized or required by the Secretary, the
Secretary shall ensure that each physician of the Department is
informed of the duty of the physician to report directly any
covered activity committed by another physician that the
physician witnesses or otherwise directly discovers to the
applicable licensing authority of each State in which the
physician who is the subject of the report is licensed to
practice medicine.
(b) Timing of Reporting.--Each physician of the Department
shall make a direct report to the State licensing authority of
a covered activity under subsection (a) not later than five
days after the date on which the physician witnesses or
otherwise directly discovers the covered activity.
(c) Definitions.--In this section:
(1) The term ``covered activity'' means any activity
occurring in a medical facility of the Department that
consists of or causes the provision of impaired,
incompetent, or unethical health care that requires
direct reporting under opinion number 9.031 of the Code
of Medical Ethics of the American Medical Association.
(2) The term ``physician of the Department'' includes
any contractor who is a physician at a medical facility
of the Department.
* * * * * * *
SUBCHAPTER V--DISCIPLINARY AND GRIEVANCE PROCEDURES
* * * * * * *
Sec. 7462. Major adverse actions involving professional conduct or
competence
(a)(1) Disciplinary Appeals Boards appointed under section
7464 of this title shall have exclusive jurisdiction to review
any case--
(A) which arises out of (or which includes) a
question of professional conduct or competence of a
section 7401(1) employee, including pursuant to section
7330B(c) of this title; and
(B) in which a major adverse action was taken.
(2) The board shall include in its record of decision in any
mixed case a statement of the board's exclusive jurisdiction
under this subsection and the basis for such exclusive
jurisdiction.
(3) For purposes of paragraph (2), a mixed case is a case
that includes both a major adverse action arising out of a
question of professional conduct or competence and an adverse
action which is not a major adverse action or which does not
arise out of a question of professional conduct or competence.
(b)(1) In any case in which charges are brought against a
section 7401(1) employee which arises out of, or includes, a
question of professional conduct or competence which could
result in a major adverse action, the employee is entitled to
the following:
(A) At least 30 days advance written notice from the
Under Secretary for Health or other charging official
specifically stating the basis for each charge, the
adverse actions that could be taken if the charges are
sustained, and a statement of any specific law,
regulation, policy, procedure, practice, or other
specific instruction that has been violated with
respect to each charge, except that the requirement for
notification in advance may be waived if there is
reasonable cause to believe that the employee has
committed a crime for which the employee may be
imprisoned.
(B) A reasonable time, but not less than seven days,
to present an answer orally and in writing to the Under
Secretary for Health or other deciding official, who
shall be an official higher in rank than the charging
official, and to submit affidavits and other
documentary evidence in support of the answer.
(2) In any case described in paragraph (1), the employee is
entitled to be represented by an attorney or other
representative of the employee's choice at all stages of the
case.
(3)(A) If a proposed adverse action covered by this section
is not withdrawn, the deciding official shall render a decision
in writing within 21 days of receipt by the deciding official
of the employee's answer. The decision shall include a
statement of the specific reasons for the decision with respect
to each charge. If a major adverse action is imposed, the
decision shall state whether any of the charges sustained arose
out of a question of professional conduct or competence. If any
of the charges are sustained, the notice of the decision to the
employee shall include notice of the employee's rights of
appeal.
(B) Notwithstanding the 21-day period specified in
subparagraph (A), a proposed adverse action may be held in
abeyance if the employee requests, and the deciding official
agrees, that the employee shall seek counseling or treatment
for a condition covered under the Rehabilitation Act of 1973.
Any such abeyance of a proposed action may not extend for more
than one year.
(4)(A) The Secretary may require that any answer and
submission under paragraph (1)(B) be submitted so as to be
received within 30 days of the date of the written notice of
the charges, except that the Secretary shall allow the granting
of extensions for good cause shown.
(B) The Secretary shall require that any appeal to a
Disciplinary Appeals Board from a decision to impose a major
adverse action shall be received within 30 days after the date
of service of the written decision on the employee.
(c)(1) When a Disciplinary Appeals Board convenes to consider
an appeal in a case under this section, the board, before
proceeding to consider the merits of the appeal, shall
determine whether the case is properly before it.
(2) Upon hearing such an appeal, the board shall, with
respect to each charge appealed to the board, sustain the
charge, dismiss the charge, or sustain the charge in part and
dismiss the charge in part. If the deciding official is
sustained (in whole or in part) with respect to any such
charge, the board shall--
(A) approve the action as imposed;
(B) approve the action with modification, reduction,
or exception; or
(C) reverse the action.
(3) A board shall afford an employee appealing an adverse
action under this section an opportunity for an oral hearing.
If such a hearing is held, the board shall provide the employee
with a transcript of the hearing.
(4) The board shall render a decision in any case within 45
days of completion of the hearing, if there is a hearing, and
in any event no later than 120 days after the appeal commenced.
(d)(1) After resolving any question as to whether a matter
involves professional conduct or competence, the Secretary
shall cause to be executed the decision of the Disciplinary
Appeals Board in a timely manner and in any event in not more
than 90 days after the decision of the Board is received by the
Secretary. Pursuant to the board's decision, the Secretary may
order reinstatement, award back pay, and provide such other
remedies as the board found appropriate relating directly to
the proposed action, including expungement of records relating
to the action.
(2) If the Secretary finds a decision of the board to be
clearly contrary to the evidence or unlawful, the Secretary
may--
(A) reverse the decision of the board, or
(B) vacate the decision of the board and remand the
matter to the Board for further consideration.
(3) If the Secretary finds the decision of the board (while
not clearly contrary to the evidence or unlawful) to be not
justified by the nature of the charges, the Secretary may
mitigate the adverse action imposed.
(4) The Secretary's execution of a board's decision shall be
the final administrative action in the case.
(e) The Secretary may designate an employee of the Department
to represent management in any case before a Disciplinary
Appeals Board.
(f)(1) A section 7401(1) employee adversely affected by a
final order or decision of a Disciplinary Appeals Board (as
reviewed by the Secretary) may obtain judicial review of the
order or decision.
(2) In any case in which judicial review is sought under this
subsection, the court shall review the record and hold unlawful
and set aside any agency action, finding, or conclusion found
to be--
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) obtained without procedures required by law,
rule, or regulation having been followed; or
(C) unsupported by substantial evidence.
* * * * * * *
[all]