[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Proposed Rules]
[Pages 30306-30309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13048]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AN45
Responding To Disruptive Patients
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the Department of Veterans
Affairs (VA) regulation that authorizes appropriate action when a
patient engages in disruptive behavior at a VA medical facility. VA
needs to update its current regulation to reflect modern medical care
and ethical practices. The proposed rule would authorize VA to modify
the time, place, and/or manner in which VA provides treatment to a
patient, in order to ensure the safety of others at VA medical
facilities, and to prevent any interference with the provision of
medical care.
DATES: Comment Date: Comments on the proposed rule must be received by
VA on or before August 2, 2010.
ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to
(202) 273-9026. Comments should indicate that they are submitted in
response to ``RIN 2900-AN45--Responding To Disruptive Patients.''
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 at http://www.Regulations.gov through the Federal Docket
Management System (FDMS).
FOR FURTHER INFORMATION CONTACT: Roscoe Butler, Deputy Director,
Business Policy, Chief Business Office (163), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 461-1586. (This is not a toll free
number.)
SUPPLEMENTARY INFORMATION: Under 38 U.S.C. chapters 17 and 18, VA has
authority to provide medical care to certain veterans and nonveterans.
VA is required, per 38 U.S.C. 1721, to prescribe rules and regulations
to promote good conduct on the part of VA patients. VA has implemented
this authority in 38 CFR part 17.
Regarding the rights of patients receiving VA care, 38 CFR 17.33(a)
prescribes, in part, that patients have ``a right to be treated with
dignity in a humane environment that affords them both reasonable
protection from harm and appropriate privacy with regard to their
personal needs.'' Patients also have ``a right to receive, to the
extent of eligibility therefor under the law, prompt and appropriate
treatment for any physical or emotional disability.'' Section 17.33(b)
also prescribes rights with respect to visitations and communications,
clothing, personal possessions, money, social interaction, exercise,
and worship for VA residents and inpatients. These rights may be
restricted by the appropriate health care professional in certain
circumstances. See 38 CFR 17.33(c). The restrictions authorized by
Sec. 17.33(c), however, do not apply to outpatients and only cover
restrictions on the listed rights. In certain cases, VA must restrict
the provision of medical care to a patient in order to prevent harm to
other patients and VA staff and disruptions in VA's provision of
medical care due to the patient's behavior.
VA regulations also prescribe rules of conduct for patients and
other individuals who have access to VA facilities. See 38 CFR 1.218.
In particular, Sec. 1.218(a)(5) prohibits persons on VA property from
causing a wide variety of disturbances, including creating ``loud or
unusual noise,'' obstructing public areas, and impeding or disrupting
``the performance of official duties by Government employees.'' The
sole enforcement mechanism provided by paragraph (a)(5) is ``arrest and
removal from the premises.'' 38 CFR 1.218(a)(5). VA has determined that
arrest is generally not an appropriate remedy in a situation where the
Department must balance the rights and needs of a disruptive patient
against the need to protect other patients, guests, and staff. Some
patients establish a pattern of disruptive behavior when interacting
with VA personnel or when they are on VA property, and we believe that
by understanding these patterns of behavior, planning for such behavior
in advance, and setting safe conditions for care delivery, we can
intervene in ways that can prevent subsequent episodes requiring
removal and arrest.
In addition to Sec. Sec. 1.218 and 17.33, the behavior of patients
is specifically governed by current 38 CFR 17.106. It requires, in
part, that VA maintain the good conduct of patients through
``corrective and disciplinary procedure.''
[[Page 30307]]
However, current Sec. 17.106, which VA promulgated in 1973 and last
amended over 10 years ago, does not adequately reflect modern practice
or VA's policy regarding disruptive patients in the health care
setting, which opposes the use of punishment in the management of
disruptive patients. Instead, it reflects the view that patients
exhibiting disruptive behavior must be punished. For example, current
Sec. 17.106 emphasizes disciplining patients who do not engage in
``good conduct,'' and includes measures (such as withholding pass
privileges) that do not differentiate between providing care and
ensuring the safety of others. Moreover, the current rule could be
viewed as interfering with VA's legal obligation to provide medical
care to certain veterans and nonveterans. Accordingly, VA has
determined that amendments to current regulations are necessary to
implement its policy regarding disruptive patients, which emphasizes
continuation of treatment.
We propose to amend Sec. 17.106 to prescribe the remedial measures
VA will take when a patient is disruptive and the procedures for
implementing those measures. VA intends that the proposed rule would
minimize the risk of a particular patient jeopardizing the health or
safety of others, or disrupting the safe provision of medical care to
another patient, in a VA medical facility.
In proposed Sec. 17.106(a), we would define ``VA medical
facility'' to mean any VA medical center, outpatient clinic, or
domiciliary. We would not include VA nursing homes (also referred to as
community living centers) because the limitations on the time, place,
and manner for delivering care are not applicable to patients in this
residential setting.
Proposed paragraph (b) would authorize VA to restrict the time,
place, and/or manner of the provision of a patient's medical care if
the patient's behavior at a VA medical facility has or could jeopardize
the health or safety of other patients, VA staff, or guests at the
facility, or otherwise interfere with the delivery of safe medical care
to another patient at the facility. Decisions regarding these
restrictions would be made by the VA medical facility Chief of Staff or
his or her designee. An appropriate designee might include, for
example, a Disruptive Behavior Committee (DBC). VA has mandated DBCs at
all of the Department's medical centers, and these committees regularly
assess disruptive behavior. As such, they have developed expertise in
this area.
Proposed paragraph (b) would also set forth procedures for
implementing these determinations. Thus, any order restricting a
patient's care would need to be in writing and signed by the Chief of
Staff or designee with a copy entered into the patient's VA medical
record. The Chief of Staff or designee would provide the patient a copy
of the order and an explanation of the procedure for an administrative
review under paragraph (e) as soon as possible after issuance. Unless
otherwise stated in the order, these restrictions would take effect
upon the signature of the Chief of Staff or designee. We have
determined that restrictions under this proposed rule would be
necessary in situations where a patient's behavior has or could harm
another person or interfere with the delivery of medical care to
another patient at the facility. Accordingly, in almost every case VA
would need to implement the restrictions immediately to prevent the
harm and meet its obligation to provide safe medical care.
The proposed procedure would emphasize addressing the disruptive
patient's needs in order to advance VA's focus on patient care. We
propose to require that authorized officials making determinations
under this section narrowly tailor restrictions to avoid interfering
with the disruptive patient's care. Ultimately, we expect that actions
under this proposed rule would increase the likelihood that the
disruptive patient will engage, or re-engage (if it has been necessary
to terminate an episode of care), in health care in a safe and
efficacious manner, without being disruptive. Indeed, through our DBCs
and similar committees, we are already seeing anecdotal evidence of
such results.
The standard for making determinations under the proposed rule is
in paragraph (b)(1). Under this standard, the Chief of Staff or
designee would evaluate whether the patient's behavior has or could
jeopardize the health or safety of patients or other individuals who
have access to VA medical facilities. The Chief of Staff or designee
would also evaluate whether the patient's behavior has or could
interfere with the delivery of medical care to another patient at a VA
medical facility. In making such determinations, the Chief of Staff or
designee would consider, among other things, the patient's individual
fears; VA's obligation to provide the patient with high-quality medical
care; and all of the pertinent facts, such as any prior counseling of
the patient regarding his or her inappropriate behavior. See proposed
paragraph (c).
Proposed paragraph (d) would also suggest a range of possible
restrictions that could be imposed. We believe that these suggestions
would assist Chiefs of Staff or their designees to narrowly tailor
restrictions imposed under the proposed rule. We do not intend to limit
the remedial options available to the officials making determinations
under this section. Rather, proposed paragraph (d) would illustrate the
types of restrictions that might be appropriate in a given situation
and would authorize any other restriction that the Chief of Staff or
designee deems appropriate short of arrest and removal. Restrictions
could thus be tailored to consider the needs of a particular situation
or patient.
Proposed paragraph (e) would prescribe the procedures for obtaining
an administrative review of restrictions imposed by order of the Chief
of Staff or designee under the proposed rule. VA provides medical care
through 21 networks of medical facilities known as Veterans Integrated
Service Networks. We propose to allow one appeal of an order
restricting medical care under this section to the Network Director of
jurisdiction. The patient would initiate the Network Director's review
by submitting a request to the Chief of Staff within 30 days of the
effective date of the Chief of Staff's or designee's order. However, in
light of VA's obligation to provide safe medical care for all patients,
the order would be enforced while under review by the Network Director.
The Chief of Staff would provide the patient written notice of the
Network Director's final decision.
At the end of the proposed rule, we would include a note stating as
follows: ``Although VA may restrict the time, place, and/or manner of
care under this section, VA will continue to offer the full range of
needed medical care to which a patient is eligible under title 38 of
the United States Code or Code of Federal Regulations.'' We do not
intend to prevent patients from accessing non-emergent VA medical care
and will work with veterans to try to find other VA medical facilities
that can provide the care. However, we recognize that in a few
instances VA restrictions on the time, place, or manner of care may
make it very difficult for a veteran to access VA care if the veteran
is unwilling to accept the restrictions placed upon his or her behavior
by the local facility. We also note that it has been our experience
that through creative case management on the part of VA staff and other
involved parties, it is almost always possible to find transportation,
even for veterans who must travel great distances for routine
appointments.
[[Page 30308]]
We do not consider patients disruptive if they merely do not comply
with a doctor's orders, decline recommended medical treatment, or leave
a facility against medical advice. Such noncompliance can be, and is,
addressed most effectively through clinical means. We propose to add a
second sentence to the note explicitly stating that noncompliance with
VA medical treatment recommendations is not disruptive under this
section.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more (adjusted annually for inflation) in any given
year. This proposed rule will have no such effect on State, local, or
tribal governments, or the private sector.
Paperwork Reduction Act of 1995
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Executive Order 12866
Executive Order 12866 directs agencies to assess all 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,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by 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
the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule have been examined and it has been
determined to be a significant regulatory action under the Executive
Order because it is likely to result in a rule that may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
Regulatory Flexibility Act
The Secretary hereby certifies that 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 proposed rule would not cause a significant
economic impact on health care providers, suppliers, or entities since
only a small portion of the business of such entities concerns VA
beneficiaries. Therefore, pursuant to 5 U.S.C. 605(b), this proposed
amendment is exempt from the initial and final regulatory flexibility
analysis requirements of sections 603 and 604.
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
Centers; 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; 64.013, Veterans
Prosthetic Appliances; 64.014, 64.015, Sharing Specialized Medical
Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence;
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. John R.
Gingrich, Chief of Staff, approved this document on March 22, 2010, for
publication.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Day care, Dental health, Drug abuse, Health care, Health facilities,
Health professions, Health records, Homeless, Medical and dental
schools, Medical devices, Medical research, Mental health programs,
Nursing homes.
Dated: May 26, 2010.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel.
For the reasons set forth in the preamble, the Department of
Veterans Affairs proposes to amend 38 CFR part 17 as follows:
PART 17--MEDICAL
1. The authority citation for part 17 is revised to read as
follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
2. Section 17.106 is revised to read as follows:
Sec. 17.106 VA response to disruptive behavior of patients.
(a) Definition. For the purposes of this section:
VA medical facility means VA medical centers, outpatient clinics,
and domiciliaries.
(b) Response to disruptive patients. The time, place, and/or manner
of the provision of a patient's medical care may be restricted by
written order of the Chief of Staff of the VA Medical Center of
jurisdiction or his or her designee if:
(1) The Chief of Staff or designee determines pursuant to paragraph
(c) of this section that the patient's behavior at a VA medical
facility has or could jeopardize the health or safety of other
patients, VA staff, or guests at the facility, or otherwise interfere
with the delivery of safe medical care to another patient at the
facility;
(2) The order is narrowly tailored to address the patient's
disruptive behavior and avoid undue interference with the patient's
care;
(3) The order is signed by the Chief of Staff or designee, and a
copy is entered into the patient's permanent medical record;
(4) The patient receives a copy of the order and written notice of
the procedure for appealing the order to the network director of
jurisdiction as soon as possible after issuance; and
(5) The order contains an effective date and any appropriate limits
on the duration of or conditions for continuing the restrictions. The
Chief of Staff or designee may order restrictions for a definite period
or until the conditions for removing conditions specified in the order
are satisfied. Unless otherwise stated, the restrictions imposed by an
order will take effect upon issuance by the Chief of Staff or designee.
Any order issued by the Chief of Staff or designee shall include a
summary of the pertinent facts and the bases for the Chief of Staff's
or designee's
[[Page 30309]]
determination regarding the need for restrictions.
(c) Evaluation of disruptive behavior. In making determinations
under paragraph (b) of this section, the Chief of Staff or designee
must consider all pertinent facts, including any prior counseling of
the patient regarding his or her disruptive behavior or any pattern of
such behavior, and whether the disruptive behavior is a result of the
patient's individual fears, preferences, or perceived needs. A
patient's disruptive behavior must be assessed in connection with VA's
duty to provide good quality care, including care designed to reduce or
otherwise clinically address the patient's behavior.
(d) Restrictions. The restrictions on care imposed under this
section may include but are not limited to:
(1) Specifying the hours in which nonemergent outpatient care will
be provided;
(2) Arranging for medical and any other services to be provided in
a particular patient care area (e.g., private exam room near an exit);
(3) Arranging for medical and any other services to be provided at
a specific site of care;
(4) Specifying the health care provider, and related personnel, who
will be involved with the patient's care;
(5) Requiring police escort; or
(6) Authorizing VA providers to terminate an encounter immediately
if certain behaviors occur.
(e) Review of restrictions. The patient may request the Network
Director's review of any order issued under this section within 30 days
of the effective date of the order by submitting a written request to
the Chief of Staff. The Chief of Staff shall forward the order and the
patient's request to the Network Director for a final decision. The
Network Director shall issue a final decision on this matter within 30
days. VA will enforce the order while it is under review by the network
director. The Chief of Staff will provide the patient who made the
request written notice of the Network Director's final decision.
Note: Although VA may restrict the time, place, and/or manner
of care under this section, VA will continue to offer the full range
of needed medical care to which a patient is eligible under title 38
of the United States Code or Code of Federal Regulations. Patients
have the right to accept or refuse treatments or procedures, and
such refusal by a patient is not a basis for restricting the
provision of care under this section.
(Authority: 38 U.S.C. 501, 901, 1721)
[FR Doc. 2010-13048 Filed 5-28-10; 8:45 am]
BILLING CODE 8320-01-P