Responding to Disruptive Patients, 69881-69883 [2010-28711]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 75, Number 220 (Tuesday, November 16, 2010)]
[Rules and Regulations]
[Pages 69881-69883]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28711]


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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: Final rule.

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SUMMARY: This final rule amends the Department of Veterans Affairs (VA) 
regulation that authorizes appropriate action when a patient engages in 
disruptive behavior at a VA medical facility. This amendment updates 
VA's current regulation to reflect modern medical care and ethical 
practices. The final rule authorizes 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: This final rule is effective December 16, 2010.

FOR FURTHER INFORMATION CONTACT: Roscoe Butler, Acting 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 non-veterans. 
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.'' 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 non-
veterans. Accordingly, VA has determined that amendments to current 
regulations are necessary to implement its policy regarding disruptive 
patients, which emphasizes continuation of treatment.
    On June 1, 2010, we proposed 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. 75 FR 30,306. We stated 
that our intent was to 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. 
We received three comments on the proposed rule. All of the commenters 
supported the proposed rule, and there were no adverse comments on the 
content of the proposed regulation text or on the rationales for the 
regulation text that we

[[Page 69882]]

had provided in the notice of proposed rulemaking.
    The first commenter agreed that the proposed rule ``indicate[s] a 
total care for other patients [sic] safety, as well as the disruptive 
patient's safety.'' The commenter agreed that the regulations, being 
``more extensive and unique to the acts of disruptive behavior,'' may 
lead to improvements for VA facilities. The commenter suggested that 
``speaking with a disruptive patient * * * could eliminate the issue 
from happening again to someone else.'' Although the regulation does 
not specifically require direct verbal communication with a disruptive 
patient, the regulation requires VA to provide the patient with notice 
of the content of any order responding to the patient's behavior, and 
clearly contemplates clinical involvement, including patient-specific 
communication. To the extent that the commenter offers a way for VA to 
improve generally the manner in which we respond to disruptive patients 
in order to eliminate future disruptions, we agree and note that we 
have established Disruptive Behavior Committees (DBCs) specifically for 
this purpose. These DBCs will review instances of disruptive behavior 
and make appropriate recommendations. Thus, we make no changes based on 
this comment.
    Another commenter agreed that withholding visitation rights or any 
other restriction, as was authorized by the prior version of Sec.  
17.106, may be unethical. The final rule does not contemplate such 
punitive measures, and furthermore, paragraph (b)(2) of the final rule 
requires that any restrictions on the time, place, or manner of patient 
care must be ``narrowly tailored.'' The commenter added that ``any 
action taken against the patient should be handled clinically'' by an 
appropriate medical professional. We agree, and note that the final 
rule requires that the VA medical facility Chief of Staff or his or her 
designee, which will in all cases be a clinical professional, authorize 
all actions taken in regards to a disruptive patient. As stated in the 
proposed rule, the new regulatory procedure will emphasize addressing 
the disruptive patient's needs in order to advance VA's focus on 
patient care. Thus, we make no changes based on this comment.
    The third and final commenter, speaking for The Joint Commission, 
supported the regulation and did not offer any suggestions for 
improvement. The Joint Commission approved of the regulation because it 
is in accordance with their own criteria concerning the rights and 
responsibilities of patients and the environment in which care is 
provided. We appreciate the comment, and have not made any changes 
based on it.
    For the foregoing reasons, VA amends 38 CFR 17.106 as proposed in 
the June 1, 2010, notice of proposed rulemaking published at 75 FR 
30,306.

Effect of Rulemaking

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

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 final rule will have no such effect on State, local, or 
tribal governments, or on the private sector.

Paperwork Reduction Act of 1995

    This final rule 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 final rule have been examined and it has been 
determined not to be a significant regulatory action under the 
Executive Order.

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 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 final rule 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 November 3, 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.


[[Page 69883]]


    Dated: November 9, 2010.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel.

0
For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 17 as follows:

PART 17--MEDICAL

0
1. Revise the authority citation for part 17 to read as follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.

0
2. Revise Sec.  17.106 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 jeopardized 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 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 to Sec.  17.106:  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. 2010-28711 Filed 11-15-10; 8:45 am]
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