[Federal Register Volume 78, Number 145 (Monday, July 29, 2013)]
[Rules and Regulations]
[Pages 45454-45457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18057]



38 CFR Part 1

RIN 2900-AO61

Patient Access to Records

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: The Department of Veterans Affairs (VA) amends its regulation 
governing disclosure of information to veterans and other 
beneficiaries. The current regulation provides for a special procedure 
for evaluating sensitive records and determining whether an individual 
may gain access to his or her own records. The special procedure allows 
VA to prevent an individual's access to his or her own records if VA 
determines that such release could have an adverse effect on the 
physical or mental health of a requesting individual. We have 
determined that this special procedure is contrary to law, and 
therefore remove it from the current regulation.

DATES: Effective Date: This final rule is effective July 29, 2013.

FOR FURTHER INFORMATION CONTACT: Stephania Griffin, Veterans Health 
Administration Privacy Officer, Office of Informatics and Analytics 
(10P2C), Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (704) 245-2492. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The Privacy Act of 1974 (Privacy Act), 5 
U.S.C. 552a, requires federal agencies maintaining a system of records 
to disclose to an individual any record or information pertaining to 
that individual upon request. The Privacy

[[Page 45455]]

Act provides safeguards for an individual against an invasion of 
personal privacy by requiring federal agencies to permit an individual 
to (1) determine what records pertaining to that individual are 
collected, maintained, used, or disseminated; (2) prevent records 
pertaining to that individual obtained by the agency for a particular 
purpose from being used or made available for another purpose without 
consent; and (3) gain access to information pertaining to that 
individual in agency records, to have a copy made of all or any portion 
thereof, and to correct or amend such records.
    Federal agencies are required by the Privacy Act to establish 
procedures for the disclosure to an individual upon his request of his 
record or information pertaining to him. These procedures may include, 
if deemed necessary, a special procedure ``for the disclosure to an 
individual of medical records, including psychological records, 
pertaining to him.'' 5 U.S.C. 552a(f)(3). However, the end result of 
any procedure, including the special procedure, must be disclosure of 
the records to the requesting individual. Bavido v. Apfel, 215 F.3d 743 
(7th Cir. 2000). Although agencies are allowed to establish such 
special procedures, they are not required to do so.
    Disclosure of VA records, however, has a competing authority. Under 
38 U.S.C. 5701(b)(1), VA is required to disclose files, records, 
reports, and other documents pertaining to a claimant only when, in the 
judgment of VA, the disclosure ``would not be injurious to the physical 
or mental health of the claimant.''
    VA developed a special procedure, pursuant to the Privacy Act and 
section 5701(b)(1), at 38 CFR 1.577(d). Under current Sec.  1.577(d), 
in those cases where records contain information that may be injurious 
to the physical or mental health of the claimant, VA will either 
disclose the records to a physician or other professional person 
selected by the claimant, who can then disclose the information as that 
professional person may believe is indicated; arrange for the claimant 
to meet with a VA physician for a discussion of the contents before 
disclosure; or decide not to disclose the information. Denials of 
disclosure or access may be appealed to VA's Office of General Counsel.
    In Benavides v. U.S. Bureau of Prisons, 995 F.2d 269 (D.C. Cir. 
1993), the U.S. Court of Appeals for the D.C. Circuit considered a 
Department of Justice (DOJ) regulation that was published as a special 
procedure under 5 U.S.C. 552a(f)(3). In that case, the DOJ regulation 
allowed the agency to prevent disclosure to an individual of records 
pertaining to that individual. Instead, the DOJ regulation permitted 
the agency to disclose sensitive records to a physician designated by 
the requesting individual and required the designated physician to 
determine which records to disclose to the individual. Benavides, 995 
F.2d at 271-72. The court held that this regulation was not permissible 
under 5 U.S.C. 552a(f)(3) because ``[a] regulation that expressly 
contemplates that the requesting individual may never see certain 
medical records is simply not a special procedure for disclosure to 
that person.'' Benavides, 995 F.2d at 272.
    The special procedure in Sec.  1.577(d) is similar to that 
considered by the court in Benavides. It operationalizes the 
requirement found in 38 U.S.C. 5701(b)(1) that VA disclose information 
to a veteran as to matters concerning the veteran only after VA 
determines that the disclosure would not be injurious to the physical 
or mental health of the veteran. Both the statute and regulation allow 
VA to withhold information it believes would be injurious.
    Thus, 38 U.S.C. 5701(b)(1) and Sec.  1.577(d) directly conflict 
with the Privacy Act. We have determined that the Privacy Act governs 
decisions regarding disclosure to a veteran of information pertaining 
to that veteran. The Act supersedes 38 U.S.C. 5701(b)(1) to the extent 
38 U.S.C. 5701(b)(1) applies to Privacy Act protected records and is 
controlling. As a general rule of statutory construction, where two 
laws on the same subject are in conflict and the conflict cannot be 
reconciled, the later enacted law controls to the extent of the 
conflict. J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International Inc., 
534 U.S. 124 (2001); U.S. v. Borden Co., 308 U.S. 188 (1939); 1A Norman 
J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory 
Construction Sec.  23:9 (7th ed. 2009). This rule of construction is 
resorted to only when there is clearly an irreconcilable conflict, or 
the subsequent act of Congress clearly is intended to occupy the entire 
field covered by the prior enactment, and all other means of 
interpretation have been exhausted. Elephant Butte Irrigation Dist. of 
New Mexico v. U.S. Dep't of Interior, 269 F.3d 1158 (10th Cir. 2001).
    The Privacy Act is applicable to all executive agencies and 
requires agencies to disclose to requesting individuals the content of 
records pertaining to them. It was intended to help individuals gain 
access to government records about themselves and to correct erroneous 
information in those records. Blazy v. Tenet, 194 F.3d 90, 95-96 (D.C. 
Cir. 1999). The Privacy Act was enacted to promote ``governmental 
respect for the privacy of citizens by requiring all departments and 
agencies of the executive branch and their employees to observe certain 
constitutional rules in the computerization, collection, management, 
use, and disclosure of personal information about individuals.'' S. 
Rep. No. 93-1183 (1974). When the individual to whom the information 
pertains is also the individual requesting the information, the Privacy 
Act presumes that disclosure to that individual will occur. Wren v. 
Harris, 675 F.2d 1144, 1146 (10th Cir. 1982); see also Bavido, 215 F.3d 
at 750; Benavides, 995 F.2d at 272.
    The Privacy Act allows agencies to exempt certain records from 
access by the individual to whom the records pertain. These exemptions 
are found at 5 U.S.C. 552a(d)(5), 5 U.S.C. 552a(j), and 5 U.S.C. 
552a(k). The content of veterans' records is not included as an 
exemption to disclosure under the Privacy Act. Because Congress 
recognized specific exceptions in the Privacy Act but did not authorize 
the exception in section 5701(b)(1) either specifically or through a 
general exception similar to the one in section 5701(b)(1), we believe 
the legislative intent behind the Privacy Act was to provide 
individuals with an unqualified right of access to their own health 
records. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes 
and Statutory Construction Sec.  47:23 (7th ed. 2009) (the express 
mention of one thing implies the exclusion of others).
    The Privacy Act authorizes agencies to promulgate rules 
administering the process by which individuals may request records. 
However, as noted by the court in Bavido, while agencies are allowed 
under 5 U.S.C. 552a(f)(3) to develop special procedures for disclosure 
of health records in cases in which direct transmission could adversely 
affect a requesting individual, ``under the plain wording of the 
statute, these procedures eventually must lead to disclosure of the 
records to the requesting individual.'' Bavido, 215 F.3d at 750.
    Section 30 of The World War Veteran's Act of 1924, Public Law 68-
242, codified as 38 U.S.C. 5701(b)(1), is applicable to all VA records. 
The statute contains mandatory language, and it makes disclosure to 
requesting individuals conditional on VA finding that the content of 
the record will not be injurious to the physical or mental health of 
the veteran. Nondisclosure is required if VA determines that disclosure 
of the content will be

[[Page 45456]]

injurious. The two laws cannot be harmonized to the extent they both 
apply to Privacy Act protected records, as compliance with one means 
noncompliance with the other. We therefore find that the Privacy Act, 
which is the later enacted statute, is controlling authority with 
respect to Privacy Act protected records such as a veteran's medical 
records and claims files.
    The special procedure in Sec.  1.577(d) was published under the 
authority of the Privacy Act, but also recognizes the nondisclosure 
requirement provided for in 38 U.S.C. 5701(b)(1). This result is 
contrary to the letter, spirit, and intent of the Privacy Act. As the 
Privacy Act controls and is the last legislative expression regarding 
disclosure to individuals of Privacy Act protected records, we remove 
the special procedure from Sec.  1.577(d) in its entirety and publish 
this as a final rule, as removal of the procedure as written is 
mandated by law.
    While VA has the authority to establish a special procedure for 
disclosure of medical and mental health treatment records, we believe 
that any such special procedure places an unwarranted barrier to the 
veteran's access to information and is not needed. VA believes that 
imposing a special procedure on disclosure is contrary to our goal of 
providing patient-centered care, which depends on the full and timely 
sharing of information and full, informed patient participation in 
decision making regarding current and future health care. Removing 
barriers to a veteran's access to VA records will support a provider-
patient relationship based on mutual trust and sharing of information 
and promote patient autonomy and shared decision making. Removing this 
regulation will directly benefit veterans by increasing access to their 
own health records and fulfill the intent of the Privacy Act by 
allowing the veteran to determine what records VA maintains and whether 
the content of those records should be amended.
    In addition, the process of reviewing the content of existing 
health records for the existence of ``sensitive'' material diverts 
valuable resources that would otherwise be used to deliver medical 
services because doctors must take time away from direct medical care 
of veterans to review materials in records that must ultimately be 
provided to the veteran in any circumstance. Finally, the process 
thwarts VA's goal of providing veterans with direct access to 
information contained in their electronic health record (EHR). For 
example, health records marked as containing ``sensitive'' material 
cannot be made directly available to veterans via MyHealtheVet, the 
award-winning web-based VA tool that allows veterans to manage and 
access their health information. This could result in a two-tiered 
system wherein only some veterans have access to their entire EHR. The 
remaining veterans would in effect be stigmatized due to flagged 
content in their health records.

Administrative Procedure Act

    This final rule is an interpretive rule that merely reflects VA's 
interpretation of the Privacy Act and 38 U.S.C. 5701(b)(1). Therefore, 
it is exempt from the prior notice-and-comment and delayed effective 
date requirements of 5 U.S.C. 553. See 5 U.S.C. 553(b)(A) and (d)(2). 
This final rule eliminates a special procedure that is contrary to law 
and a potential barrier to VA disclosing a veteran's health information 
to that veteran upon request as required under the Privacy Act. 
Providing patients with access to records upon request is consistent 
with controlling privacy laws and prevailing practice and is not 
controversial. This action will directly benefit veterans by 
eliminating a barrier to veterans receiving information that they are 
otherwise entitled to receive.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-

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. This final rule will directly affect only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 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, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by the Office of 
Management and Budget (OMB) unless OMB waives such review, 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 this Executive Order.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action, and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

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 final 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 64.007, Blind Rehabilitation 

[[Page 45457]]

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 64.022, Veterans Home 
Based Primary Care.

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. Jose D. 
Riojas, Interim Chief of Staff, Department of Veterans Affairs, 
approved this document on June 26, 2013, 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, Inventions and patents, Parking, Penalties, 
Privacy, Reporting and recordkeeping requirements, Seals and insignia, 
Security measures, Wages.

    Dated: July 23, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

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


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.

2. Amend Sec.  1.577 by:
a. Removing paragraph (d).
b. Redesignating paragraphs (e) through (g) as new paragraphs (d) 
through (f), respectively.
c. In newly designated paragraph (e)(3), in the ``Activity and Fees'' 
table, removing ``(f)(1)'' and adding, in its place, ``(e)(1)''.
[FR Doc. 2013-18057 Filed 7-26-13; 8:45 am]