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[House Report 114-815]
[From the U.S. Government Publishing Office]

114th Congress    }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                    {       114-815

======================================================================

 
             ETHICAL PATIENT CARE FOR VETERANS ACT OF 2016

                                _______
                                

 November 14, 2016.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. Miller of Florida, from the Committee on Veterans' Affairs, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 5399]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 5399) to amend title 38, United States Code, to 
ensure that physicians of the Department of Veterans Affairs 
fulfill the ethical duty to report to State licensing 
authorities impaired, incompetent, and unethical health care 
activities, having considered the same, report favorably 
thereon without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Subcommittee Consideration.......................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
Statement of General Performance Goals and Objectives............     4
New Budget Authority, Entitlement Authority, and Tax Expenditures     4
Earmarks and Tax and Tariff Benefits.............................     4
Committee Cost Estimate..........................................     4
Congressional Budget Office Estimate.............................     4
Federal Mandates Statement.......................................     5
Advisory Committee Statement.....................................     5
Constitutional Authority Statement...............................     6
Applicability to Legislative Branch..............................     6
Statement on Duplication of Federal Programs.....................     6
Disclosure of Directed Rulemaking................................     6
Section-by-Section Analysis of the Legislation...................     6
Changes in Existing Law Made by the Bill as Reported.............     7

                          Purpose and Summary

    H.R. 5399, the ``Ethical Patient Care for Veterans Act of 
2016,'' was introduced by Representative David P. Roe of 
Tennessee on June 7, 2016. H.R. 5399 would require the 
Department of Veterans Affairs (VA) to ensure that each VA 
physician is informed of his/her duty to report directly to the 
applicable state licensing authority any covered activity 
committed by another physician that the physician witnesses or 
otherwise discovers.

                  Background and Need for Legislation

    It is a well-established obligation within the medical 
community that physicians must report other physicians that 
engage in incompetent, unsafe, or unethical behavior that may 
put patients at risk to the applicable state licensing body 
(SLB) so that appropriate disciplinary action can be taken. In 
this regard, the American Medical Association (AMA) Code of 
Medical Ethics subchapter 9.4.2, Reporting Incompetent or 
Unethical Behaviors by Colleagues, states that, ``[t]he 
obligation to report incompetent or unethical conduct that may 
put patients at risk is recognized in both the ethical 
standards of the profession and in law and physicians should be 
able to report such conduct without fear or loss of favor.''\1\
---------------------------------------------------------------------------
    \1\American Medical Association Code of Medical Ethics, Chapter 9: 
Opinions on Professional Self-Regulation, http://www.ama-assn.org/ama/
pub/physician-resources/medical-ethics/code-medical-ethics.page 
---------------------------------------------------------------------------
    Under VA regulations found at 38 C.F.R. Part 47, ``[i]t is 
the policy of VA to report to [SLBs] 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.'' Several examples of actions that meet the 
criteria include patient neglect or abandonment; physical or 
mental impairment; substance abuse; falsification of 
credentials, medical records, or prescriptions; inappropriate 
dispensing of drugs; mental, physical, sexual, or verbal abuse 
of a patient; or unethical or moral turpitude. Veterans Health 
Administration (VHA) Handbook 1100.18, Reporting and Responding 
to State Licensing Boards, contains the requirements for health 
care facilities' procedures regarding reporting and responding 
to SLBs.\2\ The Handbook calls for multiple levels of review at 
the local, regional, and national level. The problem is that 
this process can cause delays of months or even years that put 
patients at unacceptable risk.
---------------------------------------------------------------------------
    \2\VHA Handbook 1100.18 Reporting and Responding to State Licensing 
Boards
---------------------------------------------------------------------------
    For example, VA's policies, procedures, and practices with 
regard to reporting inappropriate behavior to SLBs have come 
under scrutiny in response to an incident at the Tomah, 
Wisconsin VA Medical Center. The VA Office of the Inspector 
General (IG) conducted a review of alleged inappropriate 
prescription of controlled substances and alleged abuse of 
authority in response to a number of allegations made 
throughout 2011. According to media reports, veterans commonly 
referred to the Tomah VA Medical Center as ``Candy Land'' and 
to the then-Chief of Staff--Dr. David Houlihan--as the ``Candy 
Man'' due of the high number of opioid prescriptions that were 
routinely made available to veteran patients at that 
facility.\3\ The IG administratively closed its investigation 
in 2014 after finding that the amounts of opioids prescribed by 
Dr. Houlihan and select other providers were ``at considerable 
variance'' compared to the amounts of opioids prescribed by 
other VA medical facilities in the same region and 
substantiating that there were, ``widely held beliefs and 
concerns among pharmacy staff and among some other staff,'' of 
abuse of authority, intimidation, and retaliation on the part 
of the Chief of Staff when controlled substance prescription 
practices were questioned.\4\ An internal VA investigation into 
these issues was initiated in January 2015 after the IG's 
review was made public. That internal investigation 
substantiated unsafe clinical practices in areas such as pain 
management and psychiatric care and found that, ``an apparent 
culture of fear at the [Tomah VA Medical Center] compromised 
patient care and impacted staff satisfaction and morale.''\5\ 
Dr. Houlihan was eventually terminated by VA for failure to 
provide appropriate medical care to some patients in his care. 
However, VA did not notify the Wisconsin Medical Examining 
Board of the instances of inadequate care that Dr. Houlihan had 
provided so that the Board could take licensing action against 
him until after he had resumed private practice.
---------------------------------------------------------------------------
    \3\Chicago Tribune, ``Veterans: VA hospital nicknamed `Candy Land' 
because painkillers given out freely,'' January 9, 2015. http://
www.chicagotribune.com/news/ct-tomah-va-hospital-nw-20150109-story.html 

    \4\VA Office of the Inspector General, ''Administrative Closure--
Alleged Inappropriate Prescribing of Controlled Substances and Alleged 
Abuse of Authority, Tomah VA Medical Center, Tomah, WI.'' http://
www.va.gov/oig/pubs/VAOIG-11-04212-127.pdf 
    \5\Summary of Phase One Clinical Review Findings, Tomah, WI, March 
10, 2015, http://www.va.gov/opa/docs/
MEMO_Summary_of_Phase_One_Clinical_Review_Findings_Tomah_WI.pdf
---------------------------------------------------------------------------
    The Committee believes that VA's existing policies 
regarding reporting inappropriate behavior to SLBs or other 
relevant bodies must allow for direct reporting by physicians 
to SLBs for impaired, incompetent, or unethical medical care 
that puts patients at risk. As such, Section 2 of the bill 
would require VA to ensure that each VA physician is informed 
of his/her duty to report directly to the applicable state 
licensing authority any covered activity committed by another 
physician that the physician witnesses or otherwise discovers 
within five days. A ``covered activity'' is defined as any 
activity occurring in a VA medical facility that consists of or 
causes the provision of impaired, incompetent, or unethical 
health care that requires direct reporting under the AMA Code 
of Medical Ethics.

                                Hearings

    There were no Full Committee or Subcommittee hearings held 
on H.R. 5399.

                       Subcommittee Consideration

    There was no Subcommittee markup of H.R. 5399.

                        Committee Consideration

    On September 21, 2016, the Full Committee met in open 
markup session, a quorum being present, and ordered H.R. 5399 
reported favorably to the House of Representatives by voice 
vote. A motion by Representative Mark Takano of California to 
report H.R. 5399 favorably to the House of Representatives was 
agreed to by voice vote.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, there were no recorded votes 
taken on amendments or in connection with ordering H.R. 5399 
reported to the House.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are to ensure the Secretary of Veterans 
Affairs clarifies that VA physicians have a duty to report 
impaired, incompetent, or unethical behavior committed by 
another physician to applicable State licensing authorities.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                  Earmarks and Tax and Tariff Benefits

    H.R. 5399 does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate on H.R. 
5399 prepared by the Director of the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974.

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 5399 provided by the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 13, 2016.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5399, the Ethical 
Patient Care for Veterans Act of 2016.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Ann E. 
Futrell.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 5399--Ethical Patient Care for Veterans Act of 2016

    H.R. 5399 would require physicians employed by the 
Department of Veterans Affairs (VA) to report unethical health 
care practices that take place at VA medical facilities to the 
appropriate state licensing authority within five days of 
occurrence. The bill also would require VA to inform physicians 
of that responsibility.
    Under current law, VA monitors and evaluates the quality of 
health care through its quality-assurance program. Under that 
program, physicians may confidentially submit reports of 
unethical practices that they witness. CBO expects that VA 
would distribute information about the new reporting 
requirement through electronic correspondence. As a result, CBO 
estimates that implementing H.R. 5399 would have insignificant 
costs for administrative activities over the 2017-2021 period; 
that spending would be subject to the availability of 
appropriated funds.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 5399 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    H.R. 5399 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Ann E. Futrell. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 5399 prepared by the Director of the 
Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
5399.

                 Statement of Constitutional Authority

    Pursuant to Article I, section 8 of the United States 
Constitution, H.R. 5399 is authorized by Congress' power to 
``provide for the common Defense and general Welfare of the 
United States.''

                  Applicability to Legislative Branch

    The Committee finds that H.R. 5399 does not relate to the 
terms and conditions of employment or access to public services 
or accommodations within the meaning of section 102(b)(3) of 
the Congressional Accountability Act.

              Statement on Duplication of Federal Programs

    Pursuant to section 3(g) of H. Res. 5, 114th Cong. (2015), 
the Committee finds that no provision of H.R. 5399 establishes 
or reauthorizes a program of the Federal Government known to be 
duplicative of another Federal program, a program that was 
included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most 
recent Catalog of Federal Domestic Assistance.

                   Disclosure of Directed Rulemaking

    Pursuant to section 3(i) of H. Res. 5, 114th Cong. (2015), 
the Committee estimates that H.R. 5399 contains no directed 
rule making that would require the Secretary to prescribe 
regulations.

             Section-by-Section Analysis of the Legislation

Section 1. Short title

    Section 1 of the bill would provide the short title for 
H.R. 5399, as the ``Ethical Patient Care for Veterans Act of 
2016.''

Section 2. Duty to report impaired, incompetent, and unethical health 
        care activities

    Section 2(a) of the bill would amend Subchapter II of 
chapter 74 of title 38, U.S.C., by adding a new section, 
``7330B. Duty to report impaired, incompetent, and unethical 
health care activities.'' 7330B(a) would require VA to ensure 
that each VA physician is informed of the duty to directly 
report to the applicable licensing authority any ``covered'' 
activity in which that physician witnesses another VA physician 
committing or otherwise directly discovers. 7330B(b) would 
require each VA physician to make a direct report to the State 
licensing authority no later than five days after witnessing or 
otherwise directly discovering a covered activity. 7330B(c) 
would define a ``covered activity'' to mean any activity 
occurring in a VA medical facility that consists of or causes 
the provision of impaired, incompetent, or unethical health 
care that requires direct reporting under opinion number 9.031 
of the Code of Medical Ethics of the American Medical 
Association, and the term ``physician'' to include any 
contractor who is a physician at a VA medical facility.
    Section 2(b) of the bill would amend the table of contents 
at the beginning of chapter 74 by inserting ``7330B. Duty to 
report impaired, incompetent, and unethical health care 
activities.'' after 7330A.
    Section 2(c) of the bill would amend section 7462(a)(1)(A) 
of title 38 U.S.C. by inserting ``, including pursuant to 
section 7330B(c) of this title'' before the semicolon.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                      TITLE 38, UNITED STATES CODE

           *       *       *       *       *       *       *
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES

           *       *       *       *       *       *       *

         CHAPTER 74--VETERANS HEALTH ADMINISTRATION - PERSONNEL

                       SUBCHAPTER I--APPOINTMENTS

Sec.
7401. Appointments in Veterans Health Administration.
     * * * * * * *

    SUBCHAPTER II--COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

     * * * * * * *
7330B. Duty to report impaired, incompetent, and unethical health care 
          activities.

           *       *       *       *       *       *       *

SUBCHAPTER II--COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

           *       *       *       *       *       *       *

Sec. 7330B. Duty to report impaired, incompetent, and unethical health 
                    care activities

  (a) Reporting to State Licensing Authority.--In addition to 
confidential reporting under the quality-assurance program 
pursuant to section 7311(b)(4) of this title and any other 
reporting authorized or required by the Secretary, the 
Secretary shall ensure that each physician of the Department is 
informed of the duty of the physician to report directly any 
covered activity committed by another physician that the 
physician witnesses or otherwise directly discovers to the 
applicable licensing authority of each State in which the 
physician who is the subject of the report is licensed to 
practice medicine.
  (b) Timing of Reporting.--Each physician of the Department 
shall make a direct report to the State licensing authority of 
a covered activity under subsection (a) not later than five 
days after the date on which the physician witnesses or 
otherwise directly discovers the covered activity.
  (c) Definitions.--In this section:
          (1) The term ``covered activity'' means any activity 
        occurring in a medical facility of the Department that 
        consists of or causes the provision of impaired, 
        incompetent, or unethical health care that requires 
        direct reporting under opinion number 9.031 of the Code 
        of Medical Ethics of the American Medical Association.
          (2) The term ``physician of the Department'' includes 
        any contractor who is a physician at a medical facility 
        of the Department.

           *       *       *       *       *       *       *

SUBCHAPTER V--DISCIPLINARY AND GRIEVANCE PROCEDURES

           *       *       *       *       *       *       *

Sec. 7462. Major adverse actions involving professional conduct or 
                    competence

  (a)(1) Disciplinary Appeals Boards appointed under section 
7464 of this title shall have exclusive jurisdiction to review 
any case--
          (A) which arises out of (or which includes) a 
        question of professional conduct or competence of a 
        section 7401(1) employee, including pursuant to section 
        7330B(c) of this title; and
          (B) in which a major adverse action was taken.
  (2) The board shall include in its record of decision in any 
mixed case a statement of the board's exclusive jurisdiction 
under this subsection and the basis for such exclusive 
jurisdiction.
  (3) For purposes of paragraph (2), a mixed case is a case 
that includes both a major adverse action arising out of a 
question of professional conduct or competence and an adverse 
action which is not a major adverse action or which does not 
arise out of a question of professional conduct or competence.
  (b)(1) In any case in which charges are brought against a 
section 7401(1) employee which arises out of, or includes, a 
question of professional conduct or competence which could 
result in a major adverse action, the employee is entitled to 
the following:
          (A) At least 30 days advance written notice from the 
        Under Secretary for Health or other charging official 
        specifically stating the basis for each charge, the 
        adverse actions that could be taken if the charges are 
        sustained, and a statement of any specific law, 
        regulation, policy, procedure, practice, or other 
        specific instruction that has been violated with 
        respect to each charge, except that the requirement for 
        notification in advance may be waived if there is 
        reasonable cause to believe that the employee has 
        committed a crime for which the employee may be 
        imprisoned.
          (B) A reasonable time, but not less than seven days, 
        to present an answer orally and in writing to the Under 
        Secretary for Health or other deciding official, who 
        shall be an official higher in rank than the charging 
        official, and to submit affidavits and other 
        documentary evidence in support of the answer.
  (2) In any case described in paragraph (1), the employee is 
entitled to be represented by an attorney or other 
representative of the employee's choice at all stages of the 
case.
  (3)(A) If a proposed adverse action covered by this section 
is not withdrawn, the deciding official shall render a decision 
in writing within 21 days of receipt by the deciding official 
of the employee's answer. The decision shall include a 
statement of the specific reasons for the decision with respect 
to each charge. If a major adverse action is imposed, the 
decision shall state whether any of the charges sustained arose 
out of a question of professional conduct or competence. If any 
of the charges are sustained, the notice of the decision to the 
employee shall include notice of the employee's rights of 
appeal.
  (B) Notwithstanding the 21-day period specified in 
subparagraph (A), a proposed adverse action may be held in 
abeyance if the employee requests, and the deciding official 
agrees, that the employee shall seek counseling or treatment 
for a condition covered under the Rehabilitation Act of 1973. 
Any such abeyance of a proposed action may not extend for more 
than one year.
  (4)(A) The Secretary may require that any answer and 
submission under paragraph (1)(B) be submitted so as to be 
received within 30 days of the date of the written notice of 
the charges, except that the Secretary shall allow the granting 
of extensions for good cause shown.
  (B) The Secretary shall require that any appeal to a 
Disciplinary Appeals Board from a decision to impose a major 
adverse action shall be received within 30 days after the date 
of service of the written decision on the employee.
  (c)(1) When a Disciplinary Appeals Board convenes to consider 
an appeal in a case under this section, the board, before 
proceeding to consider the merits of the appeal, shall 
determine whether the case is properly before it.
  (2) Upon hearing such an appeal, the board shall, with 
respect to each charge appealed to the board, sustain the 
charge, dismiss the charge, or sustain the charge in part and 
dismiss the charge in part. If the deciding official is 
sustained (in whole or in part) with respect to any such 
charge, the board shall--
          (A) approve the action as imposed;
          (B) approve the action with modification, reduction, 
        or exception; or
          (C) reverse the action.
  (3) A board shall afford an employee appealing an adverse 
action under this section an opportunity for an oral hearing. 
If such a hearing is held, the board shall provide the employee 
with a transcript of the hearing.
  (4) The board shall render a decision in any case within 45 
days of completion of the hearing, if there is a hearing, and 
in any event no later than 120 days after the appeal commenced.
  (d)(1) After resolving any question as to whether a matter 
involves professional conduct or competence, the Secretary 
shall cause to be executed the decision of the Disciplinary 
Appeals Board in a timely manner and in any event in not more 
than 90 days after the decision of the Board is received by the 
Secretary. Pursuant to the board's decision, the Secretary may 
order reinstatement, award back pay, and provide such other 
remedies as the board found appropriate relating directly to 
the proposed action, including expungement of records relating 
to the action.
  (2) If the Secretary finds a decision of the board to be 
clearly contrary to the evidence or unlawful, the Secretary 
may--
          (A) reverse the decision of the board, or
          (B) vacate the decision of the board and remand the 
        matter to the Board for further consideration.
  (3) If the Secretary finds the decision of the board (while 
not clearly contrary to the evidence or unlawful) to be not 
justified by the nature of the charges, the Secretary may 
mitigate the adverse action imposed.
  (4) The Secretary's execution of a board's decision shall be 
the final administrative action in the case.
  (e) The Secretary may designate an employee of the Department 
to represent management in any case before a Disciplinary 
Appeals Board.
  (f)(1) A section 7401(1) employee adversely affected by a 
final order or decision of a Disciplinary Appeals Board (as 
reviewed by the Secretary) may obtain judicial review of the 
order or decision.
  (2) In any case in which judicial review is sought under this 
subsection, the court shall review the record and hold unlawful 
and set aside any agency action, finding, or conclusion found 
to be--
          (A) arbitrary, capricious, an abuse of discretion, or 
        otherwise not in accordance with law;
          (B) obtained without procedures required by law, 
        rule, or regulation having been followed; or
          (C) unsupported by substantial evidence.

           *       *       *       *       *       *       *

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