[Federal Register Volume 85, Number 220 (Friday, November 13, 2020)]
[Proposed Rules]
[Page 72615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24673]


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

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AP90


Consent for Release of VA Medical Records

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule; withdrawal.

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

SUMMARY: The Department of Veterans Affairs (VA) is withdrawing a 
document published in the Federal Register on January 19, 2018, 
proposing to amend its regulations to clarify that a valid consent 
authorizing VA to release the patient's confidential VA medical records 
to a health information exchange (HIE) community partner may be 
established not only by VA's physical possession of the written consent 
form, but also by the HIE community partner's written (electronic) 
attestation that the patient has provided such consent.

DATES: The proposed rule published at 83 FR 2762 on January 19, 2018, 
is withdrawn as of November 13, 2020.

ADDRESSES: The docket for this action is available at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Stephania Griffin, Director, Veterans 
Health Administration Information Access and Privacy Office, Department 
of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420; 
[email protected], (704) 245-2492 (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on January 19, 2018, VA proposed to amend its regulations 
concerning patient consent to release VA medical records. 83 FR 2762. 
As explained in more detail below, VA is withdrawing the proposal.
    Under 38 U.S.C. 7332, VA must keep confidential all records of 
identity, diagnosis, prognosis, or treatment of a patient or subject in 
connection with any program or activity carried out by VA related to 
drug abuse, alcoholism or alcohol abuse, infection with human 
immunodeficiency virus, or sickle cell anemia, and must obtain 
patients' written consent before VA may disclose such protected 
information unless authorized by the statute. Although section 7332 
does not explicitly require that the written consent be physically in 
VA's possession at the time of the disclosure, VA had interpreted the 
statute to require such possession, and, therefore, applied the 
corresponding regulation 38 CFR 1.475 consistent with that 
interpretation. VA had reexamined that statutory interpretation in 
light of contemporary health care industry standards, and published the 
proposed rule, at 83 FR 2762, to revise Sec.  1.475 to permit VA to 
release section 7332-protected medical records to eligible community 
partners, even if VA does not physically have the patient's written 
consent, provided that specified criteria are met.
    VA explained in the proposed rule that it has entered into an 
agreement to participate in a health information exchange (HIE) to help 
facilitate the transfer of information between different organizations. 
An HIE is the electronic transfer of health information among 
organizations according to nationally recognized standards. The 
organizations that participate (HIE community partners) range from 
community health care providers and health plans to governmental 
agencies providing benefits, such as the Social Security Administration 
(SSA).
    After the proposed rule was published, on June 6, 2018, the 
President signed into law the John S. McCain III, Daniel K. Akaka, and 
Samuel R. Johnson VA Maintaining Internal Systems and Strengthening 
Integrated Outside Networks Act of 2018 (hereafter referred to as the 
MISSION Act), Public Law 115-182, 132 Stat. 1395. Section 132 of the 
MISSION Act amended section 7332(b)(2)(H) to authorize disclosure of 
7332-protected records, with or without the written consent of the 
patient or subject of the record, to a non-VA entity (including private 
entities and other Federal agencies) for purposes of providing health 
care, including hospital care, medical services and extended care 
services, to patients or performing other health care-related 
activities or functions. These amendments to section 7332 provide VA 
with greater flexibility to share records and authorize VA to implement 
an opt-out model for the purposes of providing health care, and on 
December 13, 2019, we published a separate proposed rule to implement 
these recent amendments. See 84 FR 68065.
    As a result of the amendments to section 7332 made by section 132 
of the MISSION Act and the rulemaking published December 13, 2019, at 
84 FR 68065, we have determined the rulemaking published January 19, 
2018, at 83 FR 2762, is no longer necessary. However, we note that the 
amendments to section 7332 did not provide VA with the authority to 
make disclosures for other purposes such as exchanging information with 
other governmental agencies providing benefits. To ensure that 
withdrawal of the rulemaking published January 19, 2018, at 83 FR 2762, 
would not affect disclosures for other purposes, VA identified that SSA 
is the only other government agency with which VA exchanges 
confidential VA medical records for purposes of providing benefits. VA 
discussed with SSA whether the rulemaking published January 19, 2018, 
at 83 FR 2762, was still needed for VA to exchange information with SSA 
to provide benefits, and SSA determined it was no longer needed for 
that purpose. SSA further indicated they have no plans to send VA 
attestations of valid authorizations via HIE without also sending the 
authorization form as a PDF or other digital image, and that they are 
developing a software solution to review non-digitally created 
authorizations for validity in order to provide the attestation along 
with a digital image of the form to VA via HIE. Therefore, the proposed 
rule published January 19, 2018, at 83 FR 2762, is no longer necessary. 
Accordingly, VA is withdrawing this proposal.

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. Brooks D. 
Tucker, Assistant Secretary for Congressional and Legislative Affairs, 
Performing the Delegable Duties of the Chief of Staff, Department of 
Veterans Affairs, approved this document on November 2, 2020, for 
publication.

Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.
[FR Doc. 2020-24673 Filed 11-12-20; 8:45 am]
BILLING CODE 8320-01-P