[Federal Register Volume 66, Number 108 (Tuesday, June 5, 2001)]
[Proposed Rules]
[Pages 30141-30145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13989]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 46

RIN 2900-AJ76


Policy Regarding Participation in National Practitioner Data Bank

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: We propose to amend our regulations regarding reporting of 
health care practitioners to the National Practitioner Data Bank 
(NPDB). We propose to amend the reporting provisions concerning 
malpractice payment reporting by delegating the underlying decision-
making to malpractice payment review panels; by delegating the actual 
reporting authority to facility directors and the Chief Patient Care 
Services Officer; by establishing new procedures for obtaining 
information from affected health care practitioners and others; and by 
establishing medical reporting criteria for licensed trainees and 
supervisory health care professionals. We also propose to amend the 
regulations concerning malpractice payment reporting and clinical 
privileges actions reporting by stating that reporting may not be the 
subject of negotiated settlements and that independent contractors 
acting on behalf of the Department of Veterans Affairs (VA) are subject 
to the NPDB reporting provisions. These amendments appear to be 
necessary to make the reporting process more efficient and fair and to 
ensure that reporting is accomplished in accordance with the statutory 
framework.

DATES: Comments must be received on or before August 6, 2001.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1154, Washington, DC 20420; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN: 
2900-AJ76.'' 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 a.m. and 4:30 p.m., 
Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Kathryn W. Enchelmayer, Director, 
Credentialing and Privileging, Office of Quality and Performance (10Q), 
VHA, Department of Veterans Affairs, 810 Vermont Avenue, NW., 
Washington, DC 20420; (301) 443-9901 (This is not a toll-free number).

SUPPLEMENTARY INFORMATION: This document proposes to amend our 
regulations set forth in 38 CFR Part 46 concerning the reporting of 
physicians, dentists, and other health care practitioners to the NPDB. 
These regulations concern malpractice payment reporting and clinical 
privileges actions reporting.
    With respect to malpractice payment reporting, the regulations 
currently provide that VA will file a report with the NPDB regarding 
any payment for the benefit of a physician, dentist, or other health 
care practitioner which was made as the result of a settlement or 
judgment of a claim of medical malpractice. The regulations also state 
that the report will identify the practitioner for whose benefit the 
payment is made. Currently, the regulations provide for facility 
directors to file a report when they affirm a recommendation from a 
peer review body regarding whether payment was made for the benefit of 
a practitioner. Also, currently the regulations provide that the peer 
review bodies are to be appointed by facility directors. We propose to 
change the delegation of authority for making the determinations of 
whether payment was made for the benefit of a practitioner by 
delegating this function to malpractice payment review panels appointed 
by the Director of Medical-Legal Affairs. We believe that this will be 
a more efficient process and help ensure independent decisionmaking. We 
propose that this new process be used in all cases for which a panel is 
appointed on or after the effective date of the final rule.
    The current regulations further provide for reporting to the NPDB 
if it is determined that payment was made for the benefit of a 
practitioner. We propose to delegate this reporting authority to the 
Director of the facility in which the acts or omissions occurred and 
the Chief Patient Care Services Officer. These are the appropriate 
reporting officials within VA. Further, to help ensure that the 
reported practitioner is aware of the reporting, the reporting official 
would be required to send a copy of the report to the reported 
practitioner.
    For malpractice payment determinations, the current regulations 
provide for review of documents pertinent to the claim, including, to 
the extent practicable, information collected directly from the 
individual for whose benefit payment was made. The regulations also 
provide that individuals under consideration for malpractice payment 
reporting are to be given an opportunity for discussion with the 
facility director and any other individual designated by the facility 
director before a reporting determination is made. We propose to 
eliminate the discussion provisions and otherwise change these 
procedures as follows:
     Written notice shall be provided to the practitioner whose 
actions are under review stating that VA is considering whether to 
report the practitioner to the NPDB because of a specified malpractice 
payment made, and providing the practitioner with the opportunity to 
submit a written statement concerning the care that led to the claim 
within 30 days of receipt of the notice. The written notice shall be 
hand-delivered to the practitioner whose actions are under review or 
sent return-receipt requested to the last known address of such 
practitioner.
     Prior to making a determination, the malpractice payment 
review panel will review documents pertinent to the care that led to 
the claim. This may include

[[Page 30142]]

information prepared in response to a request from the panel.
    We believe these procedures provide for more efficient and timely 
reporting while preserving the practitioner's right to fair and 
impartial consideration of his or her actions.
    With respect to malpractice payment reporting, we also propose to 
establish special reporting criteria for licensed trainees and for 
health care professionals who supervise trainees. We propose that 
actions of a licensed trainee acting within the scope of his or her 
training program that otherwise would warrant reporting for substandard 
care, professional incompetence, or professional misconduct will be 
reported only if the panel, by at least a majority, concludes that such 
actions constitute gross negligence or willful professional misconduct. 
Also, we propose to report a physician, dentist, or other health care 
practitioner in their supervisory capacity, if the panel concludes, by 
at least a majority, that the health care practitioner was acting in a 
supervisory capacity when the event occurred; that the payment was 
related to substandard care, professional incompetence, or professional 
misconduct of the trainee and not the supervisor; and that the trainee 
did not commit gross negligence or willful misconduct. Such report 
would note that the physician, dentist, or other health care 
practitioner is being reported in a supervisory capacity. These 
provisions are intended to ensure that reporting reflects 
responsibility for actions.
    With respect to malpractice payment reporting, the regulations 
currently state that it is intended that malpractice reports be filed 
within 30 days of the date payment is made. However, the regulations 
acknowledge that VA may not be able to report within 30 days if VA is 
not notified of such payments within sufficient time to report within 
the 30-day period. We propose to add an additional example specifically 
acknowledging that the 30-day period would not be met if the 
malpractice payment review process were delayed. The examples are 
designed to ensure that VA officials understand that reporting must 
still occur even if there is a valid reason for not reporting within 
the 30-day period.
    In addition, we propose to add provisions regarding both 
malpractice payment reporting and clinical privileges actions 
reporting. We propose to add provisions stating that NPDB reporting, 
including copies to State Licensing Boards, may not be the subject of 
any negotiation in any settlement agreement, employee action, legal 
proceedings, or any other negotiated settlement. Also, we propose to 
note that independent contractors are subject to NPDB reporting under 
the regulations. We believe these provisions are consistent with the 
statutory framework for establishing NPDB reporting (42 U.S.C. 11101-
11157). Further, this policy will help ensure that NPDB reporting 
occurs when warranted.
    The provisions of Sec. 46.4 set forth a mechanism for reporting 
based on actions regarding clinical privileges. The current provisions 
inadvertently indicated that the original report and a copy would be 
filed with the State Licensing Board in the State in which the facility 
is located, and a copy filed with the State Licensing Board in the 
State(s) in which the practitioner is licensed. However, this would be 
corrected to state that the report will be filed with the National 
Practitioner Data Bank, with a copy to the State Licensing Board in the 
State(s) in which the practitioner is licensed and in which the 
facility is located.
    The current regulations at Sec. 46.4(a)(2) provide that one basis 
for reporting to the NPDB is the acceptance of the surrender of 
clinical privileges or any restriction of such privileges by a 
physician or dentist either while under investigation by the health 
care entity relating to possible incompetence or improper professional 
conduct, or in return for not conducting such an investigation or 
proceeding. We propose to specify that the acceptance of the surrender 
of clinical privileges would include the surrender of clinical 
privileges inherent in resignation or retirement. We believe that the 
need for reporting would be the same regardless of how an individual 
surrendered these clinical privileges. Also, to advise affected 
individuals of the reporting under Sec. 46.4(a)(2) and to advise them 
that copies will be sent to State Licensing Boards, we propose to 
require that, as soon as practicable following the determination to 
report, VA shall provide written notice to the practitioner that a 
report shall be filed with the National Practitioner Data Bank with a 
copy to the State Licensing Board in each State in which the 
practitioner is licensed and in the State in which the facility is 
located.
    We also propose to make nonsubstantive changes for purposes of 
clarity, including adding legal definitions of ``gross negligence'' and 
``willful professional misconduct.''

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), a 
collection of information is set forth in proposed 38 CFR 46.3(c). 
Accordingly, under section 3507(d) of the Act, VA has submitted a copy 
of this rulemaking action to the Office of Management and Budget (OMB) 
for its review of the proposed collection of information.
    OMB assigns a control number for each collection of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    Comments on the proposed collection of information should be 
submitted to the Office of Management and Budget, Attention: Desk 
Officer for the Department of Veterans Affairs, Office of Information 
and Regulatory Affairs, Washington, DC 20503, with copies mailed or 
hand-delivered to: Director, Office of Regulations Management (02D), 
Department of Veterans Affairs, 810 Vermont Avenue, N.W., Room 1154, 
Washington, DC 20420. Comments should indicate that they are submitted 
in response to ``RIN 2900-AJ76.''
    Title: Submission of Evidence.
    Summary of collection of information: Under proposed Sec. 46.3(c), 
written notice shall be provided to the practitioner whose actions are 
under review stating that VA is considering whether to report the 
practitioner to the NPDB because of a specified malpractice payment 
made, and provide the practitioner with the opportunity within 30 days 
of receipt to submit a written statement concerning the care which led 
to the malpractice payment. The peer review panel would also request 
written information as needed.
    Description of need for information and proposed use of 
information: This information would be needed for the malpractice 
payment review panels to determine whether an affected health care 
professional should be reported to the NPDB.
    Description of likely respondents: Health care professionals who 
are under consideration for reporting to the NPDB and any other 
individual involved in the care, which led to a claim resulting in a 
malpractice payment.
    Estimated number of respondents: 350 per year.
    Estimated frequency of responses: 1 per year.
    Estimated average burden per collection: 5 hours.
    Estimated total annual reporting and recordkeeping burden: 1750 
hours.
    The Department considers comments by the public on proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary

[[Page 30143]]

for the proper performance of the functions of the Department, 
including whether the information will have practical utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the collection of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed regulations.

Executive Order 12866

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of this proposed 
rule would 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. This rulemaking proceeding affects 
only individuals. Accordingly, pursuant to 5 U.S.C. 605(b), this 
proposed rule is exempt from the initial and final regulatory 
flexibility analyses requirements of Secs. 603 and 604.

The Catalog of Federal Domestic Assistance numbers for the programs 
affected by this document are 64.005, 64.007, 64.008, 64,009, 
64.010, 64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 
64.019, 64.022, 640-024, and 64.025.

List of Subjects in 38 CFR Part 46

    Health professions.

    Approved: February 28, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, 38 CFR part 46 is 
proposed to be revised as follows:

PART 46--POLICY REGARDING PARTICIPATION IN NATIONAL PRACTITIONER 
DATA BANK

Subpart A--General Provisions
Sec.
46.1   Definitions.
46.2   Purpose.
Subpart B--National Practitioner Data Bank Reporting
46.3   Malpractice payment reporting.
46.4   Clinical privileges actions reporting.
Subpart C--National Practitioner Data Bank Inquiries
46.5   National Practitioner Data Bank inquiries.
Subpart D--Miscellaneous
46.6   Medical quality assurance records confidentiality.
46.7   Prohibitions concerning negotiations.
46.8   Independent contractors.

    Authority: 38 U.S.C. 501; 42 U.S.C. 11101-11152

Subpart A--General Provisions


Sec. 46.1  Definitions.

    (a) Act means The Health Care Quality Improvement Act of 1986, as 
amended (42 U.S.C. 11101-11152).
    (b) Claim of medical malpractice means a written claim or demand 
for payment based on an act or omission of a physician, dentist, or 
other health care practitioner in furnishing (or failing to furnish) 
health care services, and includes the filing of a complaint or 
administrative tort claim under the Federal Tort Claims Act, 28 U.S.C. 
1346(b), 2671-2680.
    (c) Clinical privileges means privileges granted by a health care 
entity to individuals to furnish health care.
    (d) Dentist means a doctor of dental surgery or dental medicine 
legally authorized to practice dental surgery or dentistry by a State 
(or any individual who holds himself or herself out to be so 
authorized).
    (e) Director means the duly appointed director of a Department of 
Veterans Affairs health care facility or any individual with 
authorization to act for that person in the director's absence.
    (f) Gross negligence is materially worse than substandard care, and 
consists of an entire absence of care, or an absence of even slight 
care or diligence; it implies a thoughtless disregard of consequences 
or indifference to the rights of others.
    (g) Health care facility means a hospital, domiciliary, outpatient 
clinic, or any other entity that provides health care services.
    (h) Other health care practitioner means an individual other than a 
physician or dentist who is licensed or otherwise authorized by a State 
to provide health care services.
    (i) Physician means a doctor of medicine or osteopathy authorized 
to practice medicine or surgery by a State (or any individual who holds 
himself or herself out to be so authorized).
    (j) Professional review action means a recommendation by a 
professional review panel (with at least a majority vote) to affect 
adversely the clinical privileges of a physician or dentist taken as a 
result of a professional review activity based on the competence or 
professional conduct of an individual physician or dentist in cases in 
which such conduct affects or could affect adversely the health or 
welfare of a patient, or patients. An action is not considered to be 
based on the competence or professional conduct of a physician or 
dentist, if the action is primarily based on:
    (1) A physician's or dentist's association with, administrative 
supervision of, delegation of authority to, support for, or training 
of, a member or members of a particular class of health care 
practitioner or professional, or
    (2) Any other matter that does not relate to the competence or 
professional conduct of a physician or dentist in his/her practice at a 
Department of Veterans Affairs health care facility.
    (k) Professional review activity means an activity with respect to 
an individual physician or dentist to establish a recommendation 
regarding:
    (1) Whether the physician or dentist may have clinical privileges 
with respect to the medical staff of the facility;
    (2) The scope or conditions of such privileges or appointment; or
    (3) Change or modification of such privileges.
    (l) State means the fifty States, the District of Columbia, Puerto 
Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana 
Islands, and any other territories or possessions of the United States.
    (m) State Licensing Board means, with respect to a physician, 
dentist, or other health care practitioner in a State, the agency of 
the State, which is primarily responsible for the licensing of the 
physician, dentist, or practitioner to furnish health care services.
    (n) Willful professional misconduct means worse than mere 
substandard care, and contemplates the intentional doing of something 
with knowledge that it is likely to result in serious injuries or in 
reckless disregard of its probable consequences.

[[Page 30144]]

Sec. 46.2  Purpose.

    The National Practitioner Data Bank, authorized by the Act and 
administered by the Department of Health and Human Services, was 
established for the purpose of collecting and releasing certain 
information concerning physicians, dentists, and other health care 
practitioners. The Act mandates that the Department of Health and Human 
Services seek to enter into a Memorandum of Understanding with the 
Department of Veterans Affairs (VA) for the purpose of having VA 
participate in the National Practitioner Data Bank. Such a Memorandum 
of Understanding has been established. Pursuant to the Memorandum of 
Understanding, VA will obtain information from the Data Bank concerning 
physicians, dentists, and other health care practitioners who provide 
or seek to provide health care services at VA facilities and also 
report information regarding malpractice payments and adverse clinical 
privileges actions to the Data Bank. This part essentially restates or 
interprets provisions of that Memorandum of Understanding and 
constitutes the policy of VA for participation in the National 
Practitioner Data Bank.

Subpart B--National Practitioner Data Bank Reporting


Sec. 46.3  Malpractice payment reporting.

    (a) VA will file a report with the National Practitioner Data Bank, 
in accordance with regulations at 45 CFR part 60, subpart B, as 
applicable, regarding any payment for the benefit of a physician, 
dentist, or other licensed health care practitioner which was made as 
the result of a settlement or judgment of a claim of medical 
malpractice. The report will identify the physician, dentist, or other 
licensed health care practitioner for whose benefit the payment is 
made. It is intended that the report be filed within 30 days of the 
date payment is made. This may not be possible in all cases; e.g., 
sometimes notification of payment is delayed, and sometimes the 
malpractice payment review process cannot be completed within the 
timeframe. The report will provide the following information:
    (1) With respect to the physician, dentist, or other licensed 
health care practitioner for whose benefit the payment is made--
    (i) Name;
    (ii) Work address;
    (iii) Home address, if known;
    (iv) Social Security number, if known, and if obtained in 
accordance with section 7 of the Privacy Act of 1974;
    (v) Date of birth;
    (vi) Name of each professional school attended and year of 
graduation;
    (vii) For each professional license: the license number, the field 
of licensure, and the State in which the license is held;
    (viii) Drug Enforcement Administration registration number, if 
applicable and known;
    (ix) Name of each health care entity with which affiliated, if 
known.
    (2) With respect to the reporting VA entity--
    (i) Name and address of the reporting entity;
    (ii) Name, title and telephone number of the responsible official 
submitting the report on behalf of the Federal government; and
    (iii) Relationship of the entity to the physician, dentist, or 
other health care practitioner being reported.
    (3) With respect to the judgment or settlement resulting in the 
payment--
    (i) Where an action or claim has been filed with an adjudicative 
body, identification of the adjudicative body and the case number;
    (ii) Date or dates on which the act(s) or omission(s), which gave 
rise to the action or claim occurred;
    (iii) Date of judgment or settlement;
    (iv) Amount paid, date of payment, and whether payment is for a 
judgment or a settlement;
    (v) Description and amount of judgment or settlement and any 
conditions attached thereto, including terms of payment;
    (vi) A description of the acts or omissions and injuries or 
illnesses upon which the action or claim was based; and
    (vii) Classification of the acts or omissions in accordance with a 
reporting code adopted by the Secretary of Health and Human Services.
    (b) Payment will be considered to have been made for the benefit of 
a physician, dentist, or other licensed health care practitioner only 
if (at least a majority of) a malpractice payment review panel 
concludes that payment was related to substandard care, professional 
incompetence, or professional misconduct on the part of the physician, 
dentist, or other licensed health care practitioner. For purposes of 
this part, a panel shall have a minimum of three individuals appointed 
by the Director, Medical-Legal Affairs (including at least one member 
of the profession/occupation of the practitioner(s) whose actions are 
under review). The conclusions of the panel shall, at a minimum, be 
based on review of documents pertinent to the care that led to the 
claim. These documents include the medical records of the patient whose 
care led to the claim, any report of an administrative investigation 
board appointed to investigate the care, and the opinion of any 
consultant which the panel may request in its discretion. These 
documents do not include those generated primarily for consideration or 
litigation of the claim of malpractice. In addition, to the extent 
practicable, the documents shall include written statements of the 
individual(s) involved in the care which led to the claim. The 
practitioner(s) whose actions are under review will receive a written 
notice, hand-delivered or sent to the practitioner's last known address 
(return receipt requested). That notice will indicate that VA is 
considering whether to report the practitioner to the National 
Practitioner Data Bank because of a specified malpractice payment made, 
and provide the practitioner the opportunity, within 30 days of 
receipt, to submit a written statement concerning the care that led to 
the claim. Inability to notify or non-response from the identified 
practitioner(s) will not preclude completion of the review and 
reporting process. The panel, at its discretion, may request additional 
information from the practitioner or the VA facility where the incident 
occurred.
    (c) Attending staff (including contract employees, such as scarce 
medical specialists providing care pursuant to a contract under 38 
U.S.C. 7409) are responsible for actions of licensed trainees assigned 
under their supervision. Notwithstanding the provisions of paragraph 
(b) of this section, actions of a licensed trainee (intern or resident) 
acting within the scope of his or her training program that otherwise 
would warrant reporting for substandard care, professional 
incompetence, or professional misconduct under the provisions of 
paragraph (b) of this section, will be reported only if the panel, by 
at least a majority, concludes that such actions constitute gross 
negligence or willful professional misconduct. For purposes of 
paragraph (b) of this section, payment will be considered to be made 
for the benefit of a physician, dentist, or other health care 
practitioner, in their supervisory capacity, if the panel concludes, by 
at least a majority, that the physician, dentist or other health care 
practitioner was acting in a supervisory capacity; that the payment was 
related to substandard care, professional incompetence, or professional 
misconduct of the trainee and not the supervisor; and that the trainee 
did not commit gross negligence or willful professional misconduct.

[[Page 30145]]

Such report will note that the physician, dentist, or other health care 
practitioner is being reported in a supervisory capacity.

    Note to paragraph (c): Licensed trainees acting outside the 
scope of their training program (e.g. acting as admitting officer of 
the day) will be reported under the provisions of paragraph (b) of 
this section.

    (d) The Director of the facility at which the claim arose has the 
primary responsibility for submitting the report to the National 
Practitioner Data Bank and for providing a copy to the practitioner, to 
the State Licensing Board in each State where the practitioner holds a 
license, and to the State Licensing Board in which the facility is 
located. However, the Chief Patient Care Services Officer is also 
authorized to submit the report to the National Practitioner Data Bank 
and provide copies to the practitioner and State Licensing Boards in 
cases where the Chief Patient Care Services Officer deems it 
appropriate to do so.


Sec. 46.4  Clinical privileges actions reporting.

    (a) VA will file an adverse action report with the National 
Practitioner Data Bank in accordance with regulations at 45 CFR part 
60, subpart B, as applicable, regarding any of the following actions:
    (1) An action of a Director after consideration of a professional 
review action that, for a period longer than 30 days, adversely affects 
(by reducing, restricting, suspending, revoking, or failing to renew) 
the clinical privileges of a physician or dentist relating to possible 
incompetence or improper professional conduct.
    (2) Acceptance of the surrender of clinical privileges, including 
the surrender of clinical privileges inherent in resignation or 
retirement, or any restriction of such privileges by a physician or 
dentist either while under investigation by the health care entity 
relating to possible incompetence or improper professional conduct, or 
in return for not conducting such an investigation or proceeding 
whether or not the individual remains in VA service.
    (b) The report specified in paragraph (a) of this section will 
provide the following information--
    (1) With respect to the physician or dentist:
    (i) Name;
    (ii) Work address;
    (iii) Home address, if known;
    (iv) Social Security number, if known (and if obtained in 
accordance with section 7 of the Privacy Act of 1974);
    (v) Date of birth;
    (vi) Name of each professional school attended and year of 
graduation;
    (vii) For each professional license: the license number, the field 
of licensure, and the name of the State in which the license is held;
    (viii) Drug Enforcement Administration registration number, if 
applicable and known;
    (ix) A description of the acts or omissions or other reasons for 
privilege loss, or, if known, for surrender; and
    (x) Action taken, date action was made final, length of action and 
effective date of the action.
    (2) With respect to the VA facility--
    (i) Name and address of the reporting facility; and
    (ii) Name, title, and telephone number of the responsible official 
submitting the report.
    (c) A copy of the report referred to in paragraph (a) of this 
section will also be filed with the State Licensing Board in the 
State(s) in which the practitioner is licensed and in which the 
facility is located. It is intended that the report be filed within 15 
days of the date the action is made final, that is, subsequent to any 
internal (to the facility) appeal.
    (d) As soon as practicable after it is determined that a report 
shall be filed with the National Practitioner Data Bank and State 
Licensing Boards under paragraphs (a)(2) and (c) of this section, VA 
shall provide written notice to the practitioner that a report will be 
filed with the National Practitioner Data Bank with a copy to the State 
Licensing Board in each State in which the practitioner is licensed and 
in the State in which the facility is located.

Subpart C--National Practitioner Data Bank Inquiries


Sec. 46.5  National Practitioner Data Bank inquiries.

    VA will request information from the National Practitioner Data 
Bank, in accordance with the regulations published at 45 CFR part 60, 
subpart C, as applicable, concerning a physician, dentist, or other 
licensed health care practitioner as follows:
    (a) At the time a physician, dentist, or other health care 
practitioner applies for a position at VA Central Office, any of its 
regional offices, or on the medical staff, or for clinical privileges 
at a VA hospital or other health care entity operated under the auspice 
of VA;
    (b) No less often than every 2 years concerning any physician, 
dentist, or other health care practitioner who is on the medical staff 
or who has clinical privileges at a VA hospital or other health care 
entity operated under the auspice of VA; and
    (c) At other times pursuant to VA policy and needs and consistent 
with the Act and Department of Health and Human Services Regulations 
(45 CFR part 60).

Subpart D--Miscellaneous


Sec. 46.6  Medical quality assurance records confidentiality.

    Note that medical quality assurance records that are confidential 
and privileged under the provisions of 38 U.S.C. 5705 may not be used 
as evidence for reporting individuals to the National Practitioner Data 
Bank.


Sec. 46.7  Prohibitions concerning negotiations.

    Reporting under this part (including the submission of copies) may 
not be the subject of negotiation in any settlement agreement, employee 
action, legal proceedings, or any other negotiated settlement.


Sec. 46.8  Independent contractors.

    Independent contractors acting on behalf of the Department of 
Veterans Affairs are subject to the National Practitioner Data Bank 
reporting provisions of this part. In the following circumstances, VA 
will provide the contractor with notice that a report of a clinical 
privileges action will be filed with the National Practitioner Data 
Bank with a copy with the State Licensing Board in the State(s) in 
which the contractor is licensed and in which the facility is located: 
where VA terminates a contract for possible incompetence or improper 
professional conduct, thereby automatically revoking the contractor's 
clinical privileges, or where the contractor terminates the contract, 
thereby surrendering clinical privileges, either while under 
investigation relating to possible incompetence or improper 
professional conduct or in return for not conducting such an 
investigation or proceeding.

(Authority: 38 U.S.C. 5705)
[FR Doc. 01-13989 Filed 6-4-01; 8:45 am]
BILLING CODE 8320-01-P