69–006 

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 


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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/codemedical-ethics.page 2 VHA Handbook 1100.18 Reporting and Responding to State Licensing Boards 

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

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. 

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 

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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-nw20150109-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 5Summary 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 

tients 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. 

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 


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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: 


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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. 


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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 imVerDate Sep 11 2014 02:20 Nov 22, 2016 Jkt 069006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR815.XXX HR815

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paired, 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 

* * * * * * * 

§ 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 phyVerDate Sep 11 2014 02:20 Nov 22, 2016 Jkt 069006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6603 E:\HR\OC\HR815.XXX HR815

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sician 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 

* * * * * * * 

§ 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 


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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. 


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(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. 

* * * * * * * 

Æ 


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