[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR1.496]

[Page 36-37]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 1_GENERAL PROVISIONS--Table of Contents
 
Sec.  1.496  Orders authorizing the use of undercover agents and 

informants to criminally investigate employees or agents of VA.

    (a) Application. A court order authorizing the placement of an 
undercover agent or informant in a VA drug or alcohol abuse, HIV 
infection, or sickle

[[Page 37]]

cell anemia treatment program as an employee or patient may be applied 
for by any law enforcement or prosecutorial agency which has reason to 
believe that employees or agents of the VA treatment program are engaged 
in criminal misconduct.
    (b) Notice. The VA facility director must be given adequate notice 
of the application and an opportunity to appear and be heard (for the 
limited purpose of providing evidence on the statutory and regulatory 
criteria for the issuance of the court order), unless the application 
asserts a belief that:
    (1) The VA facility director is involved in the criminal activities 
to be investigated by the undercover agent or informant; or
    (2) The VA facility director will intentionally or unintentionally 
disclose the proposed placement of an undercover agent or informant to 
the employees or agents who are suspected of criminal activities.
    (c) Criteria. An order under this section may be entered only if the 
court determines that good cause exists. To make this determination the 
court must find:
    (1) There is reason to believe that an employee or agent of a VA 
treatment program is engaged in criminal activity;
    (2) Other ways of obtaining evidence of this criminal activity are 
not available or would not be effective; and
    (3) The public interest and need for the placement of an undercover 
agent or informant in the VA treatment program outweigh the potential 
injury to patients of the program, physician-patient relationships and 
the treatment services.
    (d) Content of order. An order authorizing the placement of an 
undercover agent or informant in a VA treatment program must:
    (1) Specifically authorize the placement of an undercover agent or 
an informant;
    (2) Limit the total period of the placement to six months;
    (3) Prohibit the undercover agent or informant from disclosing any 
patient identifying information obtained from the placement except as 
necessary to criminally investigate or prosecute employees or agents of 
the VA treatment program; and
    (4) Include any other measures which are appropriate to limit any 
potential disruption of the program by the placement and any potential 
for a real or apparent breach of patient confidentiality; for example, 
sealing from public scrutiny the record of any proceeding for which 
disclosure of a patient's record has been ordered.
    (e) Limitation on use of information. No information obtained by an 
undercover agent or informant placed under this section may be used to 
criminally investigate or prosecute any patient or as the basis for an 
application for an order under Sec.  1.494 of this part.

(Authority: 38 U.S.C. 7334)