Reporting Health Care Professionals to State Licensing Boards

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 47

RIN 2900-AI78

Reporting Health Care Professionals to State Licensing Boards

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: It continues to be the policy of the Department of Veterans

Affairs (VA) to report to State Licensing Boards any separated

physician, dentist, or other licensed health care professional whose

clinical practice so significantly failed to meet generally accepted

standards of clinical practice as to raise reasonable concern for the

safety of patients. This document provides that, in addition, VA will

report to State Licensing Boards any currently employed physician,

dentist, or other licensed health care professional (one who is on VA

rolls) whose clinical practice so significantly failed to meet

generally accepted standards of clinical practice during VA employment

as to raise reasonable concern for the safety of patients. Some health

care professionals who are VA employees also provide health care

outside VA's jurisdiction. Accordingly, the reporting of currently

employed licensed health care professionals who meet the standard for

reporting is necessary so that State Licensing Boards can take action

as appropriate to protect the public. Examples of actions that meet the

criteria for reporting are set forth in the text portion of this

rulemaking. Also, nonsubstantive changes are made for purposes of

clarity.

DATES: Effective Date: June 1, 1998.

FOR FURTHER INFORMATION CONTACT: Ruth-Ann Phelps, Ph.D., Veterans

Health Administration, Patient Care Services (11B), Department of

Veterans Affairs, 810 Vermont Ave. NW, Washington, DC 20420, at (202)

273-8473 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: In a document published in the Federal

Register on October 8, 1997 (62 FR 52519), we proposed to expand our

policy of reporting to State Licensing Boards to include any currently

employed physician, dentist, or other licensed health care professional

(one who is on VA rolls) whose clinical practice so significantly

failed to meet generally accepted standards of clinical practice during

VA employment as to raise reasonable concern for the safety of

patients. Previously, the regulations only allowed the VA to report

separated employees. The comment period ended on December 8, 1997. We

received one comment.

The regulations, among other things, provide that VA will report

individuals to State Licensing Boards for ``substance abuse when it

affects the individual's ability to perform appropriately as a health

care provider or in the patient care environment.'' The commenter

asserted that individuals should be reported for any substance abuse

that is identified, and that any reporting should include a

recommendation that the individual be required to obtain assistance at

a substance abuse rehabilitation program.

No changes are made based on this comment. The provisions of

Section 204 of Public Law 99-166 set forth the basic authority for

reporting separated individuals to State Licensing Boards. This

Statutory authority to report separated individuals to State Licensing

Boards is limited to reporting based on a finding concerning an

individual's clinical competence. We believe the policy for reporting

should be the same for separated and currently employed individuals.

Therefore, the final rule provides for reporting only if the finding of

substance abuse reflects a finding that the clinical practice of the

individual so significantly failed to meet generally

[[Page 23665]]

accepted standards of clinical practice during VA employment as to

raise reasonable concern for the safety of patients. Even so, it would

seem that in almost every case in which substance abuse is found, we

would also be able to determine that it affects the individual's

ability to perform appropriately as a health care provider in the

patient care environment. Further, currently employed individuals who

are identified as substance abusers are always encouraged by VA to

obtain rehabilitation assistance, and there is no need to make a

special recommendation to State Licensing Boards since we are aware

that State Licensing Boards routinely provide similar encouragement.

Executive Order 12866

This rule has been reviewed by OMB under Executive Order 12866.

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. 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 analyses

requirements of Secs. 603 and 604.

There are no applicable Catalog of Federal Domestic Assistance

program numbers.

List of Subjects in 38 CFR Part 47

Health professions.

Approved: April 22, 1998.

Togo D. West, Jr.,

Acting Secretary.

For the reasons set forth in the preamble, 38 CFR part 47 is

amended as follows:

PART 47--POLICY REGARDING REPORTING HEALTH CARE PROFESSIONALS TO

STATE LICENSING BOARDS

1. The authority citation for part 47 continues to read as follows:

Authority: Pub. L. 99-166, 99 Stat. 941; 38 U.S.C. 501.

2. The part heading for part 47 is revised to read as shown above.

3. In part 47, both subpart A and subpart B headings are removed.

4. In Sec. 47.1, paragraph (a) is removed; paragraphs (b) through

(h) are redesignated as paragraphs (a) through (g), respectively; new

paragraphs (h) and (i) are added, and the authority citation is

revised, to read as follows:

Sec. 47.1 Definitions.

* * * * *

(h) Currently employed licensed health care professional means a

licensed health care professional who is on VA rolls.

(i) On VA rolls means on VA rolls, regardless of the status of the

professional, such as full-time, part-time, contract service, fee-

basis, or without compensation.

(Authority: 38 U.S.C. 501, 7401-7405; Section 204(b) of Pub. L. 99-

166, 99 Stat. 952-953; Pub. L. 99-660, 100 Stat. 3743.)

Sec. 47.2 [Removed]

5. Section 47.2 is removed.

Sec. 47.3 [Redesignated as Sec. 47.2]

6. Section 47.3 is redesignated as Sec. 47.2.

7. The newly redesignated Sec. 47.2 is revised to read as follows:

Sec. 47.2 Reporting to State Licensing Boards.

It is the policy of VA to report to State Licensing Boards any

currently employed licensed health care professional or separated

licensed health care professional whose clinical practice during VA

employment so significantly failed to meet generally accepted standards

of clinical practice as to raise reasonable concern for the safety of

patients. The following are examples of actions that meet the criteria

for reporting:

(a) Significant deficiencies in clinical practice such as lack of

diagnostic or treatment capability; errors in transcribing,

administering or documenting medication; inability to perform clinical

procedures considered basic to the performance of one's occupation;

performing procedures not included in one's clinical privileges in

other than emergency situations;

(b) Patient neglect or abandonment;

(c) Mental health impairment sufficient to cause the individual to

behave inappropriately in the patient care environment;

(d) Physical health impairment sufficient to cause the individual

to provide unsafe patient care;

(e) Substance abuse when it affects the individual's ability to

perform appropriately as a health care provider or in the patient care

environment;

(f) Falsification of credentials;

(g) Falsification of medical records or prescriptions;

(h) Theft of drugs;

(i) Inappropriate dispensing of drugs;

(j) Unethical behavior or moral turpitude;

(k) Mental, physical, sexual, or verbal abuse of a patient

(examples of patient abuse include intentional omission of care,

willful violation of a patient's privacy, willful physical injury,

intimidation, harassment, or ridicule); and

(l) Violation of research ethics.

(Authority: 38 U.S.C. 501; 7401-7405; Section 204(b) of Pub. L.

99-166, 99 Stat. 952-953; Pub. L. 99-660, 100 Stat. 3743.)

[FR Doc. 98-11466 Filed 4-29-98; 8:45 am]

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