[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Rules and Regulations]
[Pages 65133-65135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27155]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AN95


Sharing Information Between the Department of Veterans Affairs 
and the Department of Defense

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
regulation pertaining to the applicability of certain VA regulations 
that restrict the disclosure of certain medical information to the 
Department of Defense (DoD). This interim final rule removes a 
restriction that is not required by the applicable statute, 38 U.S.C. 
7332(e), and is inconsistent with the intent and purpose of that 
statute.

DATES: Effective Date: This interim final rule is effective October 20, 
2011. Comments must be received by VA on or before December 19, 2011.

ADDRESSES: Written comments may be submitted through www.

[[Page 65134]]

Regulations.gov; by mail or hand-delivery to the Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll-free number.) Comments should indicate that they 
are submitted in response to ``RIN 2900-AN95--Sharing Information 
between the Department of Veterans Affairs and the Department of 
Defense.'' Copies of comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday 
(except holidays). Please call (202) 461-4902 for an appointment. (This 
is not a toll-free number.) In addition, during the comment period, 
comments may be viewed online through the Federal Docket Management 
System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Stephania Griffin, Veterans Health 
Administration Privacy Officer, Office of Information (19F2), Veterans 
Health Administration, Department of Veterans Affairs, 810 Vermont 
Ave., NW., Washington DC, 20420, (704) 245-2492. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: Section 7332(a)(1) of title 38, United 
States Code, affords special protection against the disclosure of VA 
medical ``[r]ecords of the identity, diagnosis, prognosis, or treatment 
of any patient or subject which are maintained in connection with the 
performance of any program or activity (including education, training, 
treatment, rehabilitation, or research) relating to drug abuse, 
alcoholism or alcohol abuse, infection with the human immunodeficiency 
virus, or sickle cell anemia.'' However, an exception in section 
7332(e) states: ``The prohibitions of this section shall not prevent 
any interchange of records-(1) within and among those components of 
[VA] furnishing health care to veterans, or determining eligibility for 
benefits under this title; or (2) between such components furnishing 
health care to veterans and the Armed Forces.''
    VA implemented section 7332(e) in 38 CFR 1.461(c)(1); however, in 
so doing, we did not implement the specific exception that Congress 
provided in the statute for the exchange of information between VA and 
DoD. Instead, we imposed an additional restriction on the scope of 
information that may be interchanged and shared between VA and DoD, 
limiting it to only ``information pertaining to a person relating to a 
period when such person is or was subject to the Uniform Code of 
Military Justice.'' This restriction is narrower than the statutory 
restriction, and it impedes VA's ability to share with DoD important 
medical information pertaining to veterans, so that we can coordinate 
their care and treatment. Our need to share this information is 
critical to the health and well-being of our veterans, particularly 
those whose records are transferred electronically between DoD and VA 
for medical care. Medical care requires the ability to make accurate 
and informed decisions, often under great time constraints. VA and DoD 
clinicians must have the most accurate and comprehensive data available 
to ensure that they provide the highest quality care possible. VA and 
DoD have made great strides in ensuring that the exchange of medical 
information regarding current and former members of the military is 
available wherever the care is being provided. We have discovered that, 
particularly in this age of electronic health records, this regulatory 
restriction creates an impediment to maximizing the exchange of 
information. Critical medical history may be out of reach of the 
clinician treating a patient with a chronic condition. In contrast, 
having a fully developed medical record will ensure that VA and DoD 
clinicians avoid allergic reactions from known drug allergies and 
negative interactions of a new drug with one previously prescribed. It 
will also ensure that patients will not unnecessarily undergo medical 
procedures that were already performed elsewhere.
    Further, the additional restriction impedes VA's ability to fully 
engage in Presidential- and Congressional-supported interoperability 
initiatives with DoD, such as electronic health record initiatives 
pursuant to Executive Order 13335 and the Virtual Lifetime Electronic 
Record initiative, a strategic initiative that will ensure timely 
access to key electronic information on patients from the time they 
enter the military through their status as Veterans. We note as well 
that this regulatory limitation was not intended to have these negative 
results on VA's ability to provide comprehensive high-quality health 
care to veterans and, where applicable, to support DoD in similarly 
caring for servicemembers and military retirees. Therefore, the 
proposed amendment to 38 CFR 1.461(c)(1) will allow VA to fulfill 
Congress' clear intention that VA and DOD engage in the interchange of 
records while remaining consistent with 38 U.S.C. 7332.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(3)(B) and (d)(3), the Secretary 
of Veterans Affairs finds that there is good cause to dispense with the 
opportunity for advance notice and public comment and good cause to 
publish this rule with an immediate effective date. As stated above, 
this interim final rule is necessary to eliminate an unnecessary 
regulatory restriction on VA's ability to share certain patient 
information with DoD that impedes VA's ability to provide needed health 
care to veterans and engage in critical programs with DoD, as described 
earlier in this notice. Delaying the effective date of this rule would 
negatively impact the full development and implementation of a VA and 
DoD electronic record system. Over 4 million patients are seen jointly 
by VA and DoD. By removing this unnecessary restriction, VA and DoD can 
each maximize the benefits of an electronic record system through which 
clinicians in either Department are able to access health data on those 
shared patients in real time and similar information exchanges for 
outpatient pharmacy and medication allergy data and for the electronic 
sharing of order entry and results retrieval of chemistry, hematology, 
anatomic pathology, and microbiology laboratory tests. To delay the 
effective date would hamper the electronic exchange of health 
information between VA and DoD, which, to ensure high levels of patient 
care and safety, must include the information related to the diagnoses 
covered by this regulation. In light of these detrimental and 
potentially detrimental effects, the Secretary finds it is 
impracticable, unnecessary, and contrary to public interest to delay 
this regulation for the purpose of soliciting advance public comment, 
or to have a delayed effective date.
    Accordingly, we are issuing this rule as an interim final rule, 
with an immediate effective date. We will consider and address comments 
that are received within 60 days of the date this interim final rule is 
published in the Federal Register.

Effect of Rulemaking

    The Code of Federal Regulations, as revised by this interim final 
rule, represents the exclusive legal authority on this subject. No 
contrary rules or procedures are authorized. All VA guidance will be 
read to conform with this rulemaking if possible or, if not possible, 
such guidance is superseded by this rulemaking.

[[Page 65135]]

Paperwork Reduction Act

    This rule contains no collections of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of this 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 rule will not directly affect any small entities; 
only individuals could be directly affected. 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.

Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 defines a ``significant regulatory action,'' 
which requires review by the Office of Management and Budget (OMB), as 
any regulatory action that is likely to result in a rule that may: (1) 
Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this interim final rule have been examined and it has 
been determined not to be a significant regulatory action.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.008, Veterans Domiciliary 
Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing 
Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription 
Service; and 64.013, Veterans Prosthetic Appliances.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on October 14, 2011, for publication.

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Archives and records, 
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information, 
Government contracts, Government employees, Government property, 
Infants and children, Penalties, Privacy, Reporting and recordkeeping 
requirements, Security measures.

    Dated: October 17, 2011.
William F. Russo,
Deputy Director, Office of Regulation Policy and Management, Department 
of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 1 as follows:

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 continues to read as follows:

    Authority:  38 U.S.C. 501(a), and as noted in specific sections.


Sec.  1.461  [Amended]

0
2. In the first sentence of Sec.  1.461(c)(1), remove the phrase ``, of 
information pertaining to a person relating to a period when such 
person is or was subject to the Uniform Code of Military Justice''.

[FR Doc. 2011-27155 Filed 10-19-11; 8:45 am]
BILLING CODE 8320-01-P