[Federal Register Volume 63, Number 211 (Monday, November 2, 1998)]
[Proposed Rules]
[Pages 58677-58678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29247]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AJ28


Medical: Advance Healthcare Planning

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the VA medical regulations to 
codify VA policy regarding advance healthcare planning. The proposed 
rule sets forth a mechanism for the use of written advance directives, 
i.e., a VA Living Will, a VA durable power of attorney for health care, 
and a state-authorized advance directive. The proposed rule also sets 
forth a mechanism for honoring verbal or nonverbal instructions from a 
patient when the patient is admitted to care when critically ill and 
loss of capacity may be imminent and the patient is not physically able 
to sign an advance directive form, or the appropriate form is not 
readily available. This is intended to help ensure that VA acts in 
compliance with patients' wishes concerning future healthcare.

DATES: Comments must be received on or before January 4, 1999.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulation Management (02D), Department of Veterans Affairs, 810 
Vermont Avenue, NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN: 2900-AJ28.'' All 
written comments received will be available for public inspection at 
the above address in the Office of Regulations Management, Room 1158, 
between the hours of 8:00 AM and 4:30 PM, Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Ruth-Ann Phelps, Ph.D., Veterans 
Health Administration, National Center for Clinical Ethics (10AE), 810 
Vermont Avenue, NW, Washington, DC 20420, at 202-273-8473 (this is not 
a toll-free number).

SUPPLEMENTARY INFORMATION: Under the authority of 38 U.S.C. 7331 
through 7333, this document proposes to amend the medical regulations 
(38 CFR Part 17) to codify VA policy concerning advance healthcare 
planning. Advance healthcare planning provides an opportunity for 
patients to give guidance to their caregivers regarding their treatment 
preferences for the future should they become incapable of 
participating fully in the decision-making process.
    The proposed rule sets forth a mechanism for the use of written 
advance directives, i.e., a VA Living Will, a VA durable power of 
attorney for health care, and a state-authorized advance directive. The 
proposed rule also sets forth a mechanism for honoring verbal or 
nonverbal instructions from a

[[Page 58678]]

patient when the patient is admitted to care when critically ill and 
loss of capacity may be imminent and the patient is not physically able 
to sign an advance directive form, or the appropriate form is not 
readily available.
    The proposed rule asserts that a patient's specific instructions 
must be followed unless contrary to VA policy. The proposed rule also 
states that a patient who has decision-making capacity may revoke an 
Advance Directive or instructions in a critical situation at any time 
by using any means expressing the intent to revoke.
    The Secretary hereby certifies that this proposed 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 analysis requirements of sections 603 and 604.
    There are no applicable Catalog of Federal Domestic Assistance 
program numbers.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs-health, Grant programs-veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

    Approved: June 17, 1998.
Togo D. West, Jr.,
Secretary.

    In consideration of the foregoing, 38 CFR part 17 is proposed to be 
amended as set forth below:

PART 17--MEDICAL

    1. The authority citation for part 17 continues to read as follows:

    Authority: 38 U.S.C. 501, 1721, unless otherwise noted.

    2. In Sec. 17.32, the section heading is revised, paragraph (a) is 
amended by adding a new definition, and paragraph (h) is added 
immediately following paragraph (g)(4), to read as follows:


Sec. 17.32  Informed consent and advance healthcare planning.

    (a) * * *
    Advance directive. Specific written statements made by a patient 
who has decision-making capacity regarding future healthcare decisions 
in one of the following:
    (i) VA Living Will. A written statement made by a patient on an 
authorized VA form which sets forth the patient's wishes regarding the 
patient's healthcare treatment preferences including the withholding 
and withdrawal of life-sustaining treatment.
    (ii) VA Durable Power of Attorney for Health Care. A written 
instruction on a VA form which designates the patient's choice of 
health care agent.
    (iii) State-Authorized Advance Directive. A Non-VA Living Will, 
Durable Power of Attorney for Health Care, or other advance healthcare 
planning document, the validity of which is determined pursuant to the 
applicable state law.
* * * * *
    (h) Advance healthcare planning. Subject to the provisions of 
paragraphs (h)(1) through (h)(4) of this section, VA will follow the 
wishes of a patient expressed in an Advance Directive when the 
attending physician determines and documents in the patient's medical 
record that the patient lacks decision-making capacity and is not 
expected to regain it.
    (1) Witnesses. A VA Living Will or A VA Durable Power of Attorney 
for Health Care must be signed by the patient in the presence of two 
witnesses. Neither witness may be entitled to, or a claimant against, 
any portion of the patient's estate; or be financially responsible for 
the patient's care. Also, neither witness may be employed by the VA 
facility in which the patient is being treated; except that when other 
witnesses are not reasonably available, employees of the Chaplain 
Service, Psychology Service, Social Work Service, or nonclinical 
employees (e.g., Medical Administration Service, Voluntary Service, or 
Environmental Management Service) may serve as witnesses. Witnesses are 
attesting only to the fact that they saw the patient sign the form.
    (2) Instructions in critical situations. VA will follow the verbal 
or non-verbal instructions of a patient when the patient is admitted to 
care when critically ill and loss of capacity may be imminent and the 
patient is not physically able to sign an advance directive form, or 
the appropriate form is not readily available. The patient's 
instructions must have been expressed to at least two members of the 
healthcare team. The substance of the patient's instructions must be 
recorded in a progress note in the patient's medical record and must be 
co-signed by both members of the healthcare team who were present and 
can attest to the wishes expressed by the patient. These instructions 
will be given effect only if the patient loses decision-making capacity 
during the presenting situation. If the patient regains decision-making 
capacity, these instructions will not be given effect for future 
treatment decisions.
    (3) Revocation. A patient who has decision-making capacity may 
revoke an Advance Directive or instructions in a critical situation at 
any time by using any means expressing the intent to revoke.
    (4) VA Policy and Disputes. Neither the treatment team nor 
surrogate may override a patient's specific instructions in an Advance 
Directive or in instructions in critical situations; except that those 
portions of an Advance Directive or instructions given in a critical 
situation that are not consistent with VA policy will not be given 
effect.
* * * * *
[FR Doc. 98-29247 Filed 10-30-98; 8:45 am]
BILLING CODE 8320-01-P