[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Rules and Regulations]
[Pages 23664-23665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11466]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 47

RIN 2900-AI78


Reporting Health Care Professionals to State Licensing Boards

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: It continues to be the policy of the Department of Veterans 
Affairs (VA) to report to State Licensing Boards any separated 
physician, dentist, or other licensed health care professional whose 
clinical practice so significantly failed to meet generally accepted 
standards of clinical practice as to raise reasonable concern for the 
safety of patients. This document provides that, in addition, VA will 
report to State Licensing Boards any currently employed physician, 
dentist, or other licensed health care professional (one who is on VA 
rolls) whose clinical practice so significantly failed to meet 
generally accepted standards of clinical practice during VA employment 
as to raise reasonable concern for the safety of patients. Some health 
care professionals who are VA employees also provide health care 
outside VA's jurisdiction. Accordingly, the reporting of currently 
employed licensed health care professionals who meet the standard for 
reporting is necessary so that State Licensing Boards can take action 
as appropriate to protect the public. Examples of actions that meet the 
criteria for reporting are set forth in the text portion of this 
rulemaking. Also, nonsubstantive changes are made for purposes of 
clarity.

DATES: Effective Date: June 1, 1998.

FOR FURTHER INFORMATION CONTACT: Ruth-Ann Phelps, Ph.D., Veterans 
Health Administration, Patient Care Services (11B), Department of 
Veterans Affairs, 810 Vermont Ave. NW, Washington, DC 20420, at (202) 
273-8473 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on October 8, 1997 (62 FR 52519), we proposed to expand our 
policy of reporting to State Licensing Boards to include any currently 
employed physician, dentist, or other licensed health care professional 
(one who is on VA rolls) whose clinical practice so significantly 
failed to meet generally accepted standards of clinical practice during 
VA employment as to raise reasonable concern for the safety of 
patients. Previously, the regulations only allowed the VA to report 
separated employees. The comment period ended on December 8, 1997. We 
received one comment.
    The regulations, among other things, provide that VA will report 
individuals to State Licensing Boards for ``substance abuse when it 
affects the individual's ability to perform appropriately as a health 
care provider or in the patient care environment.'' The commenter 
asserted that individuals should be reported for any substance abuse 
that is identified, and that any reporting should include a 
recommendation that the individual be required to obtain assistance at 
a substance abuse rehabilitation program.
    No changes are made based on this comment. The provisions of 
Section 204 of Public Law 99-166 set forth the basic authority for 
reporting separated individuals to State Licensing Boards. This 
Statutory authority to report separated individuals to State Licensing 
Boards is limited to reporting based on a finding concerning an 
individual's clinical competence. We believe the policy for reporting 
should be the same for separated and currently employed individuals. 
Therefore, the final rule provides for reporting only if the finding of 
substance abuse reflects a finding that the clinical practice of the 
individual so significantly failed to meet generally

[[Page 23665]]

accepted standards of clinical practice during VA employment as to 
raise reasonable concern for the safety of patients. Even so, it would 
seem that in almost every case in which substance abuse is found, we 
would also be able to determine that it affects the individual's 
ability to perform appropriately as a health care provider in the 
patient care environment. Further, currently employed individuals who 
are identified as substance abusers are always encouraged by VA to 
obtain rehabilitation assistance, and there is no need to make a 
special recommendation to State Licensing Boards since we are aware 
that State Licensing Boards routinely provide similar encouragement.

Executive Order 12866

    This rule has been reviewed by OMB under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The rule will affect only individuals and will not directly affect 
any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule 
is exempt from the initial and final regulatory flexibility analyses 
requirements of Secs. 603 and 604.
    There are no applicable Catalog of Federal Domestic Assistance 
program numbers.

List of Subjects in 38 CFR Part 47

    Health professions.

    Approved: April 22, 1998.
Togo D. West, Jr.,
Acting Secretary.

    For the reasons set forth in the preamble, 38 CFR part 47 is 
amended as follows:

PART 47--POLICY REGARDING REPORTING HEALTH CARE PROFESSIONALS TO 
STATE LICENSING BOARDS

    1. The authority citation for part 47 continues to read as follows:

    Authority: Pub. L. 99-166, 99 Stat. 941; 38 U.S.C. 501.

    2. The part heading for part 47 is revised to read as shown above.
    3. In part 47, both subpart A and subpart B headings are removed.
    4. In Sec. 47.1, paragraph (a) is removed; paragraphs (b) through 
(h) are redesignated as paragraphs (a) through (g), respectively; new 
paragraphs (h) and (i) are added, and the authority citation is 
revised, to read as follows:


Sec. 47.1  Definitions.

* * * * *
    (h) Currently employed licensed health care professional means a 
licensed health care professional who is on VA rolls.
    (i) On VA rolls means on VA rolls, regardless of the status of the 
professional, such as full-time, part-time, contract service, fee-
basis, or without compensation.

(Authority: 38 U.S.C. 501, 7401-7405; Section 204(b) of Pub. L. 99-
166, 99 Stat. 952-953; Pub. L. 99-660, 100 Stat. 3743.)


Sec. 47.2  [Removed]

    5. Section 47.2 is removed.


Sec. 47.3  [Redesignated as Sec. 47.2]

    6. Section 47.3 is redesignated as Sec. 47.2.
    7. The newly redesignated Sec. 47.2 is revised to read as follows:


Sec. 47.2  Reporting to State Licensing Boards.

    It is the policy of VA to report to State Licensing Boards 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. The following are examples of actions that meet the criteria 
for reporting:
    (a) Significant deficiencies in clinical practice such as lack of 
diagnostic or treatment capability; errors in transcribing, 
administering or documenting medication; inability to perform clinical 
procedures considered basic to the performance of one's occupation; 
performing procedures not included in one's clinical privileges in 
other than emergency situations;
    (b) Patient neglect or abandonment;
    (c) Mental health impairment sufficient to cause the individual to 
behave inappropriately in the patient care environment;
    (d) Physical health impairment sufficient to cause the individual 
to provide unsafe patient care;
    (e) Substance abuse when it affects the individual's ability to 
perform appropriately as a health care provider or in the patient care 
environment;
    (f) Falsification of credentials;
    (g) Falsification of medical records or prescriptions;
    (h) Theft of drugs;
    (i) Inappropriate dispensing of drugs;
    (j) Unethical behavior or moral turpitude;
    (k) Mental, physical, sexual, or verbal abuse of a patient 
(examples of patient abuse include intentional omission of care, 
willful violation of a patient's privacy, willful physical injury, 
intimidation, harassment, or ridicule); and
    (l) Violation of research ethics.

    (Authority: 38 U.S.C. 501; 7401-7405; Section 204(b) of Pub. L. 
99-166, 99 Stat. 952-953; Pub. L. 99-660, 100 Stat. 3743.)

[FR Doc. 98-11466 Filed 4-29-98; 8:45 am]
BILLING CODE 8320-01-P