Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 69881 

or commercial vessels; except the draw 

shall open anytime for commercial 

cargo vessels, including tugs, and tugs 

with tows, if two hours advance notice 

is given to the Gilmerton Bridge at (757) 

545–1512. 

From 9:30 a.m. to 3:30 p.m. Monday 

through Friday and from 6:30 a.m. to 

6:30 p.m. Saturdays, Sundays and 

Federal holidays, the draw shall open 

on signal hourly on the half hour; 

except the draw shall open anytime for 

commercial cargo vessels, including 

tugs, and tugs with tows, if two hours 

advance notice is given to the Gilmerton 

Bridge at (757) 545–1512. At all other 

times, the draw shall open on signal. 

We anticipate a decrease in vehicular 

traffic congestion at the bridge, with no 

impact to vessels passing under the 

bridge in the closed position; however 

we foresee slight delays to vessels while 

transitioning to the new test opening 

schedule. 

This test deviation has been 

coordinated with the main commercial 

waterway user group, specifically, the 

Virginia Maritime Association who 

represents waterborne commerce in the 

Port of Hampton and there is no 

expectation of any significant impacts 

on navigation. Vessels with a mast 

height of less than seven feet can pass 

underneath the bridge in the closed 

position. There are no alternate 

waterway routes. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: November 2, 2010. 

Patrick B. Trapp, 

Captain, U.S. Coast Guard, Acting 

Commander, Fifth Coast Guard District. 

[FR Doc. 2010–28737 Filed 11–15–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AN45 

Responding to Disruptive Patients 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

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 § 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, § 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 §§ 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 § 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 § 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 § 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 


jlentini on DSKJ8SOYB1PROD with RULES
69882 Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 

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 § 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. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 69883 

Dated: November 9, 2010. 

Robert C. McFetridge, 

Director of Regulation Policy and 

Management, Office of the General Counsel. 

■ For the reasons stated in the preamble, 

the Department of Veterans Affairs 

amends 38 CFR part 17 as follows: 

PART 17—MEDICAL 

■ 1. Revise the authority citation for part 

17 to read as follows: 

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

specific sections. 

■ 2. Revise § 17.106 to read as follows: 

§ 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 § 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] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[Docket No. EPA–R02–OAR–2010–0872; 

FRL–9225–8] 

Adequacy Status of the Submitted 

2009 PM2.5 Motor Vehicle Emission 

Budgets for Transportation Conformity 

Purposes for the New York Portions of 

New York-Northern New Jersey-Long 

Island, NY-NJ-CT PM2.5 Nonattainment 

Area; New York 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Finding of adequacy. 

SUMMARY: In this document, EPA is 

notifying the public that it has found the 

motor vehicle emissions budgets for 

PM2.5 and NOX in the submitted 

attainment demonstration state 

implementation plans for the New York 

portion of the New York-Northern New 

Jersey-Long Island, NY-NJ-CT PM2.5

nonattainment area to be adequate for 

transportation conformity purposes. The 

transportation conformity rule requires 

that the EPA conduct a public process 

and make an affirmative decision on the 

adequacy of budgets before they can be 

used by metropolitan planning 

organizations in conformity 

determinations. As a result of our 

finding, the New York Metropolitan 

Transportation Council (excluding 

Putnam County) and the Orange County 

Transportation Council must use the 

new 2009 PM2.5 budgets for future 

transportation conformity 

determinations. 

DATES: This finding is effective 

December 1, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Melanie Zeman, Air Programs Branch, 

Environmental Protection Agency— 

Region 2, 290 Broadway, 25th Floor, 

New York, New York 10007–1866, (212) 

637–4022, zeman.melanie@epa.gov. 

The finding and the response to 

comments will be available at EPA’s 

conformity Web site: http://

www.epa.gov/otaq/stateresources/

transconf/adequacy.htm. 

SUPPLEMENTARY INFORMATION: 

Background 

On October 27, 2009, the State of New 

York submitted an attainment 

demonstration state implementation 

plan to EPA for the New York portion 

of the New York-Northern New JerseyLong Island, NY-NJ-CT PM2.5

nonattainment area. The purpose of 

New York State’s submittal was to 

demonstrate the State’s progress toward 


jlentini on DSKJ8SOYB1PROD with RULES