Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Rules and Regulations 67093 

§ 522.15 No good time credits for inmates 

serving only civil contempt commitments. 

While serving only the civil contempt 

commitment, an inmate is not entitled 

to good time sentence credit. 

[FR Doc. 05–21968 Filed 11–3–05; 8:45 am] 

BILLING CODE 4410–05–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AL66 

Patients’ Rights 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

Department of Veterans Affairs (VA) 

medical regulations to update the 

patients’ rights regulation by bringing its 

provisions regarding medication, 

restraints, and seclusion into conformity 

with current law and practice. The 

changes are primarily intended to 

clarify that it is permissible for VA 

patients to receive medication 

prescribed by any appropriate health 

care professional authorized to prescribe 

medication, and that it is permissible for 

any authorized licensed health care 

professional to order the use of 

restraints and seclusion when 

necessary. The rule also makes 

nonsubstantive changes in the patients’

rights regulation for purposes of 

clarification. 

DATES: Effective Date: December 5, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Audrey Drake, Program Director (108), 

Veterans Health Administration, 

Department of Veterans Affairs, 810 

Vermont Ave., NW., Washington, DC 

20420, (202) 273–9237. (This is not a 

toll-free number.) 

SUPPLEMENTARY INFORMATION: In a 

document published in the Federal 

Register on August 9, 2004 (69 FR 

48184), we published a proposed rule 

amending VA’s medical regulations at 

38 CFR part 17 to update the patients’

rights regulation by bringing its 

provisions regarding medication, 

restraints, and seclusion into conformity 

with current law and practice. We 

provided a 60-day comment period that 

ended on October 8, 2004. We received 

four comments. Based on the rationale 

set forth in the proposed rule and this 

document, we are adopting the 

proposed rule as a final rule. 

One commenter expressed support for 

expanding the scope of health care 

professionals authorized to prescribe 

medication, and recognizing that 

licensed health care professionals other 

than physicians are authorized to order 

seclusion and restraint. The commenter 

expressed concern, however, that the 

reference to ‘‘appropriate licensed 

health care professional’’ might be 

interpreted as requiring that the 

authority to order restraint and 

seclusion be granted in the State 

licensing law rather than in some other 

State law. The commenter states that 

this is a crucial distinction because the 

authority for psychologists to order 

restraint and seclusion is not necessarily 

found in State licensing laws. The 

commenter asserts that such authority 

may be found in State laws governing 

health care institutions, or identifying 

patients’ rights. The commenter 

recommends clarifying this point in the 

preamble to the regulation. 

With regard to this issue, we note that 

the reference in the regulation to an 

‘‘appropriate licensed health care 

professional’’ was not intended to 

require that the authority of a health 

care professional to order restraint and 

seclusion be specifically contained in 

State licensing law, or any State law, for 

that matter. Licensed health care 

professionals working in VA facilities 

may order the use of restraints and 

seclusion consistent with Federal, not 

State law. VA determines which health 

care providers are deemed ‘‘appropriate 

licensed health care professionals’’ for 

purposes of ordering restraint and 

seclusion through the privileging and 

credentialing process as outlined in VA 

policies and handbooks. No changes are 

made based on this comment. 

One commenter opposed the rule 

because it would eliminate all 

references to physicians and replace 

those references with the words 

‘‘appropriate licensed health care 

professional.’’ The commenter stated 

that there are clear and convincing 

differences between the training and 

education of physicians and other 

health care professionals, and that 

physicians should oversee the care of 

patients. The commenter states that 

although this can be done using a team 

approach, the physician should provide 

the diagnosis and determine the course 

of treatment. The commenter expressed 

concern with the expanding scope of 

practice for non-physician providers 

within the Veterans Health 

Administration and throughout the 

health care delivery system. 

VA’s policy is to provide high quality 

health care to patients. This is 

accomplished through the proper 

utilization of a variety of well-qualified 

and appropriately credentialed health 

care providers. In VA, non-physician 

health care providers commonly 

provide a diagnosis for patients and 

determine the course of treatment 

within their scope of practice. Nationwide, written VA policy establishes 

medication-prescribing authority for 

Clinical Nurse Specialists, Nurse 

Practitioners, Clinical Pharmacy 

Specialists, and Physicians Assistants. 

Written VA policy requires that 

procedures be in place to ensure that 

these practitioners are prescribing 

within their identified scope of practice, 

and licensure when appropriate, and 

that the scope of practice for 

credentialed health care providers is 

approved in accordance with written 

VHA policy. No changes are made based 

on these comments. 

Two commenters expressed support 

for the proposed revision to this 

regulation. No changes are made based 

on these comments. 

One nonsubstantive clarifying change 

has been made to this final rule. 

Longstanding provisions in § 17.33(e) 

require that an attending physician 

review the drug regimen of each patient 

at least every thirty days. In this final 

rule we are changing ‘‘patient’’ to 

‘‘inpatient’’ to more clearly reflect the 

scope of this provision. This change 

does not alter the scope of the rule but 

merely clarifies VA’s intent and 

longstanding interpretation that the 

thirty-day requirement is specific to 

inpatient treatment. As explained in the 

notice of proposed rulemaking, we are 

further clarifying that the review must 

be conducted by an appropriate health 

care provider. 

Based on the rationale set forth in the 

proposed rule and this document, VA is 

adopting the provisions of the proposed 

rule as a final rule with the change 

noted above. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 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 

an 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 would have 

no such effect on State, local, or tribal 

governments, or the private sector. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501–3521). 

67094 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Rules and Regulations 

Executive Order 12866 

VA has examined the economic 

implications of this proposed rule as 

required by 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). 

Executive Order 12866 classifies a rule 

as significant if it meets any one of a 

number of specified conditions, 

including: having an annual effect on 

the economy of $100 million, adversely 

affecting a sector of the economy in a 

material way, adversely affecting 

competition, or adversely affecting jobs. 

A regulation is also considered a 

significant regulatory action if it raises 

novel legal or policy issues. 

VA concludes that this final rule does 

not meet the economic significance 

threshold of $100 million effect on the 

economy in any one year under section 

3(f)(1). VA concludes, however, that this 

final rule is a significant regulatory 

action under the Executive Order since 

it raises novel legal and policy issues 

under section 3(f)(4). 

Regulatory Flexibility Act 

The Secretary of Veterans Affairs (VA) 

hereby certifies that this regulatory 

amendment 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 amendment 

will affect only veterans receiving 

certain VA benefits and does not affect 

any small entities. Therefore, pursuant 

to 5 U.S.C. 605(b), this amendment is 

exempt from the initial and final 

regulatory flexibility analysis 

requirements of sections 603 and 604. 

Catalog of Federal Domestic Assistance 

Numbers 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.005, Grants to States for the 

Construction of State Homes; 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, Veterans 

State Domiciliary Care; 64.015, Veterans 

State Nursing Home Care; 64.016, 

Veterans State Hospital Care; 64.018, 

Sharing Specialized Medical Resources; 

64.019, Veterans Rehabilitation Alcohol 

and Drug Dependence; and 64.022, 

Veterans Home Based Primary Care. 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Claims, Day care, Dental health, Drug 

abuse, Foreign relations, Government 

contracts, Grant programs-health, Grant 

programs-veterans, Health care, Health 

facilities, Health professions, Health 

records, Homeless, Medical and dental 

schools, Medical devices, Medical 

research, Mental health programs, 

Nursing homes, Philippines, Reporting 

and recordkeeping requirements, 

Scholarships and fellowships, Travel 

and transportation expenses, Veterans. 

Approved: July 13, 2005 

Gordon H. Mansfield, 

Deputy Secretary of Veterans Affairs. 

■ For the reasons set out in the 

preamble, 38 CFR part 17 is amended as 

set forth below: 

PART 17—MEDICAL 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 38 U.S.C. 501, 1721, unless 

otherwise noted. 

■ 2. Section 17.33 is amended by: 

■ a. In paragraph (b) introductory text, 

removing ‘‘paragraph (c)’’ and adding, 

in its place, ‘‘paragraphs (c) and (d)’’. 

■ b. In paragraphs (c)(1) introductory 

text, (c)(2) introductory text, and 

(c)(2)(iv), removing ‘‘health or mental 

health professional’’ and adding, in its 

place, ‘‘health care professional’’. 

■ c. In paragraph (c)(1)(ii), removing 

‘‘detaining’’ and adding, in its place, 

‘‘detailing’’. 

■ d. In paragraph (c)(2) introductory 

text, removing ‘‘this paragraph’’ and 

adding, in its place, ‘‘paragraph (c) of 

this section’’. 

■ e. In paragraph (c)(3), removing 

‘‘(c)(1)’’ and adding, in its place, ‘‘(b)’’. 

■ f. In paragraph (c)(4), removing 

‘‘pursuant to this paragraph’’, and 

adding, in its place, ‘‘under paragraph 

(c) of this section’’. 

■ g. In paragraph (c)(5), removing 

‘‘orders’’ and adding, in its place, 

‘‘orders under paragraph (c) of this 

section’’. 

■ h. Revising paragraphs (d)(1), (d)(2), 

and (e). 

The revisions read as follows: 

§ 17.33 Patients’ rights. 

* * * * * 

(d) * * * (1) Each patient has the 

right to be free from physical restraint 

or seclusion except in situations in 

which there is a substantial risk of 

imminent harm by the patient to 

himself, herself, or others and less 

restrictive means of preventing such 

harm have been determined to be 

inappropriate or insufficient. Patients 

will be physically restrained or placed 

in seclusion only on the written order 

of an appropriate licensed health care 

professional. The reason for any 

restraint order will be clearly 

documented in the progress notes of the 

patient’s medical record. The written 

order may be entered on the basis of 

telephonic authority, but in such an 

event, an appropriate licensed health 

care professional must examine the 

patient and sign a written order within 

an appropriate timeframe that is in 

compliance with current community 

and/or accreditation standards. In 

emergency situations, where inability to 

contact an appropriate licensed health 

care professional prior to restraint is 

likely to result in immediate harm to the 

patient or others, the patient may be 

temporarily restrained by a member of 

the staff until appropriate authorization 

can be received from an appropriate 

licensed health care professional . Use 

of restraints or seclusion may continue 

for a period of time that does not exceed 

current community and/or accreditation 

standards, within which time an 

appropriate licensed health care 

professional shall again be consulted to 

determine if continuance of such 

restraint or seclusion is required. 

Restraint or seclusion may not be used 

as a punishment, for the convenience of 

staff, or as a substitute for treatment 

programs. 

(2) While in restraint or seclusion, the 

patient must be seen within appropriate 

timeframes in compliance with current 

community and/or accreditation 

standards: 

(i) By an appropriate health care 

professional who will monitor and chart 

the patient’s physical and mental 

condition; and 

(ii) By other ward personnel as 

frequently as is reasonable under 

existing circumstances. 

* * * * * 

(e) Medication. Patients have a right to 

be free from unnecessary or excessive 

medication. Except in an emergency, 

medication will be administered only 

on a written order of an appropriate 

health care professional in that patient’s 

medical record. The written order may 

be entered on the basis of telephonic 

authority received from an appropriate 

health care professional, but in such 

event, the written order must be 

countersigned by an appropriate health 

care professional within 24 hours of the 

ordering of the medication. An 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Rules and Regulations 67095 

appropriate health care professional will 

be responsible for all medication given 

or administered to a patient. A review 

by an appropriate health care 

professional of the drug regimen of each 

inpatient shall take place at least every 

thirty (30) days. It is recognized that 

administration of certain medications 

will be reviewed more frequently. 

Medication shall not be used as 

punishment, for the convenience of the 

staff, or in quantities which interfere 

with the patient’s treatment program. 

* * * * * 

[FR Doc. 05–21976 Filed 11–3–05; 8:45 am] 

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