Authority of VA Professionals To Practice Health Care
| Citation | 85 FR 71838 |
| Record Number | 2020-24817 |
| Published date | 12 November 2020 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
Federal Register, Volume 85 Issue 219 (Thursday, November 12, 2020)
[Federal Register Volume 85, Number 219 (Thursday, November 12, 2020)]
[Rules and Regulations]
[Pages 71838-71846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24817]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ94
Authority of VA Professionals To Practice Health Care
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing this
interim final rule to confirm that its health care professionals may
practice their health care profession consistent with the scope and
requirements of their VA employment, notwithstanding any State license,
registration, certification, or other requirements that unduly
interfere with their practice. Specifically, this rulemaking confirms
VA's current practice of allowing VA health care professionals to
deliver health care services in a State other than the health care
professional's State of licensure, registration, certification, or
other State requirement, thereby enhancing beneficiaries' access to
critical VA health care services. This rulemaking also confirms VA's
authority to establish national standards of practice for health care
professionals which will standardize a health care professional's
practice in all VA medical facilities.
DATES: Effective Date: This rule is effective on November 12, 2020.
Comments: Comments must be received on or before January 11, 2021.
ADDRESSES: Comments may be submitted through www.Regulations.gov or
mailed to, Beth Taylor, 10A1, 810 Vermont Avenue NW, Washington, DC
20420. Comments should indicate that they are submitted in response to
[``RIN 2900-AQ94--Authority of VA Professionals to Practice Health
Care.''] Comments received will be available at regulations.gov for
public viewing, inspection, or copies.
FOR FURTHER INFORMATION CONTACT: Beth Taylor, Chief Nursing Officer,
Veterans Health Administration. 810 Vermont Avenue NW, Washington, DC
20420, (202) 461-7250. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On January 30, 2020, the World Health
Organization (WHO) declared the COVID-19 outbreak to be a Public Health
Emergency of International Concern. On January 31, 2020, the Secretary
of the Department of Health and Human Services declared a Public Health
Emergency pursuant to 42 United States Code (U.S.C.) 247d, for the
entire United States to aid in the nation's health care community
response to the COVID-19 outbreak. On March 11, 2020, in light of new
data and the rapid spread in Europe, WHO declared COVID-19 to be a
pandemic. On March 13, 2020, the President declared a National
Emergency due to COVID-19 under sections 201 and 301 of the National
Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section
1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5).
As a result of responding to the needs of our veteran population and
other non-veteran beneficiaries during the COVID-19 National Emergency,
where VA has had to shift health care
[[Page 71839]]
professionals to other locations or duties to assist in the care of
those affected by this pandemic, VA has become acutely aware of the
need to promulgate this rule to clarify the policies governing VA's
provision of health care.
This rule is intended to confirm that VA health care professionals
may practice their health care profession consistent with the scope and
requirements of their VA employment, notwithstanding any State license,
registration, certification, or other requirements that unduly
interfere with their practice. In particular, it will confirm (1) VA's
continuing practice of authorizing VA health care professionals to
deliver health care services in a State other than the health care
professional's State of licensure, registration, certification, or
other requirement; and (2) VA's authority to establish national
standards of practice for health care professions via policy, which
will govern their employment, subject only to State laws where the
health care professional is licensed, credentialed, registered, or
subject to some other State requirements that do not unduly interfere
with those duties.
We note that the term State as it applies to this rule means each
of the several States, Territories, and possessions of the United
States, the District of Columbia, and the Commonwealth of Puerto Rico,
or a political subdivision of such State. This definition is consistent
with the term State as it is defined in 38 U.S.C. 101(20).
A conflicting State law is one that would unduly interfere with the
fulfillment of a VA health care professional's Federal duties. We note
that the policies and practices confirmed in this rule only apply to VA
health care professionals appointed under 38 U.S.C. 7306, 7401, 7405,
7406, or 7408 or title 5 of the U.S. Code, which does not include
contractors working in VA medical facilities or those working in the
community.
VA has long understood its governing statutory authorities to
permit VA to engage in these practices. Section 7301(b) of title 38 the
U.S. Code establishes that the primary function of the Veterans Health
Administration (VHA) within VA is to provide a complete medical and
hospital service for the medical care and treatment of veterans. To
allow VHA to carry out its medical care mission, Congress established a
comprehensive personnel system for certain VA health care
professionals, independent of the civil service rules. See Chapters 73-
74 of title 38 of the U.S. Code. Congress granted the Secretary express
statutory authority to establish the qualifications for VA's health
care professionals, determine the hours and conditions of employment,
take disciplinary action against employees, and otherwise regulate the
professional activities of those individuals. 38 U.S.C. 7401-7464.
Section 7402 of 38 U.S.C. establishes the qualifications of
appointees. To be eligible for appointment as a VA employee in a health
care profession covered by section 7402(b) (other than a medical
facility Director appointed under section 7402(b)(4)), most
individuals, after appointment, must, among other requirements, be
licensed, registered, or certified to practice their profession in a
State, or satisfy some other State requirement. However, the standards
prescribed in section 7402(b) establish only the basic qualifications
for VA health care professionals and do not limit the Secretary from
establishing other qualifications or rules for health care
professionals.
In addition, the Secretary is responsible for the control,
direction, and management of the Department, including agency personnel
and management matters. See 38 U.S.C. 303.
Such authorities permit the Secretary to further regulate the
health care professions to make certain that VA's health care system
provides safe and effective health care by qualified health care
professionals to ensure the well-being of those veterans who have borne
the battle. In this rulemaking, VA is detailing its authority to manage
its health care professionals by stating that they may practice their
health care profession consistent with the scope and requirements of
their VA employment, notwithstanding any State license, registration,
certification, or other State requirements that unduly interfere with
their practice. VA believes that this is necessary in order to provide
additional protection for VA health care professionals against adverse
State actions proposed or taken against them when they are practicing
within the scope of their VA employment, particularly when they are
practicing across State lines or when they are performing duties
consistent with a VA national standard of practice for their health
care profession.
Practice Across State Lines
Historically, VA has operated as a national health care system that
authorizes VA health care professionals to practice in any State as
long as they have a valid license, registration, certification, or
fulfill other State requirements in at least one State. In doing so, VA
health care professionals have been practicing within the scope of
their VA employment regardless of any unduly burdensome State
requirements that would restrict practice across State lines. We note,
however, that VA may only hire health care professionals who are
licensed, registered, certified, or satisfy some other requirement in a
State, unless the statute requires or provides otherwise (e.g., 38
U.S.C. 7402(b)(14)).
The COVID-19 pandemic has highlighted VA's acute need to exercise
its statutory authority of allowing VA health care professionals to
practice across State lines. In response to the pandemic, VA needed to
and continues to need to move health care professionals quickly across
the country to care for veterans and other beneficiaries and not have
State licensure, registration, certification, or other State
requirements hinder such actions. Put simply, it is crucial for VA to
be able to determine the location and practice of its VA health care
professionals to carry out its mission without any unduly burdensome
restrictions imposed by State licensure, registration, certification,
or other requirements. This rulemaking will support VA's authority to
do so and will provide an increased level of protection against any
adverse State action being proposed or taken against VA health care
professionals who practice within the scope of their VA employment.
Since the start of the pandemic, in furtherance of VA's Fourth
Mission, VA has rapidly utilized its resources to assist parts of the
country that are undergoing serious and critical shortages of health
care resources. VA's Fourth Mission is to improve the Nation's
preparedness for response to war, terrorism, national emergencies, and
natural disasters by developing plans and taking actions to ensure
continued service to veterans, as well as to support national, State,
and local emergency management, public health, safety and homeland
security efforts.
VA has deployed personnel to support other VA medical facilities
that have been impacted by COVID-19 as well as provided support to
State and community nursing homes. As of July 2020, VA has deployed
personnel to more than 45 States. VA utilized the Disaster Emergency
Medical Personnel System (DEMPS), VA's main deployment program, for VA
health care professionals to travel to locations deemed as national
emergency or disaster areas, to help provide health care services in
places such as New Orleans, Louisiana, and New York City, New York. As
of June 2020, a total of 1,893 staff have been mobilized to meet the
needs of our facilities and Fourth
[[Page 71840]]
Mission requests during the pandemic. VA deployed 877 staff to meet
Federal Emergency Management Agency (FEMA) Mission requests, 420 health
care professionals were deployed as DEMPS response, 414 employees were
mobilized to cross level staffing needs within their Veterans
Integrated Service Networks (VISN), 69 employees were mobilized to
support needs in another VISN, and 113 Travel Nurse Corps staff
responded specifically for COVID-19 staffing support. In light of the
rapidly changing landscape of the pandemic, it is crucial for VA to be
able to move its health care professionals quickly across the country
to assist when a new hot spot emerges without fear of any adverse
action from a State be proposed or taken against a VA health care
professional.
We note that, in addition to providing in person health care across
State lines during the pandemic, VA also provides telehealth across
State lines. VA's video to home services have been heavily leveraged
during the pandemic to deliver safe, quality VA health care while
adhering to Centers for Disease Control and Prevention (CDC) physical
distancing guidelines. Video visits to veterans' homes or other offsite
location have increased from 41,425 in February 2020 to 657,423 in July
of 2020. This represents a 1,478 percent utilization increase. VA has
specific statutory authority under 38 U.S.C. 1730C to allow health care
professionals to practice telehealth in any State regardless of where
they are licensed, registered, certified, or satisfy some other State
requirement. This rulemaking is consistent with Congressional intent
under Public Law 115-185, sec. 151, June 6, 2018, codified at 38 U.S.C.
1730C for all VA health care professionals to practice across State
lines regardless of the location of where they provide health care.
This rulemaking will ensure that VA professionals are protected
regardless of how they provide health care, whether it be via
telehealth or in-person.
Beyond the current need to mobilize health care resources quickly
to different parts of the country, this practice of allowing VA health
care professionals to practice across State lines optimizes the VA
health care workforce to meet the needs of all VA beneficiaries year-
round. It is common practice within the VA health care system to have
primary and specialty health care professionals routinely travel to
smaller VA medical facilities or rural locations in nearby States to
provide care that may be difficult to obtain or unavailable in that
community. As of January 14, 2020, out of 182,100 licensed health care
professionals who are employed by VA, 25,313 or 14 percent do not hold
a State license, registration, or certification in the same State as
their main VA medical facility. This number does not include the VA
health care professionals who practice at a main VA medical facility in
one State where they are licensed, registered, certified, or hold some
other State requirement, but also practice at a nearby Community Based
Outpatient Clinic (CBOC) in a neighboring State where they do not hold
such credentials. Indeed, 49 out of the 140 VA medical facilities
nationwide have one or more sites of care in a different State than the
main VA medical facility.
Also, VA has rural mobile health units that provide health care
services to veterans who have difficulty accessing VA health care
facilities. These mobile units are a vital source of health care to
veterans who live in rural and medically underserved communities. Some
of the services provided by the mobile units include, but are not
limited to, health care screening, mental health outreach, influenza
and pneumonia vaccinations, and routine primary care. The rural mobile
health units are an integral part of VA's goal of encouraging healthier
communities and support VA's preventative health programs. Health care
professionals who provide health care in these mobile units may provide
services in various States where they may not hold a license,
registration, or certification, or satisfy some other State
requirement. It is critical that these health care professionals are
protected from any adverse State action proposed or taken when
performing these crucial services.
In addition, the practice of health care professionals of providing
health care across State lines also gives VA the flexibility to hire
qualified health care professionals from any State to meet the staffing
needs of a VA health care facility where recruitment or retention is
difficult. As of December 31, 2019, VA had approximately 13,000
vacancies for health care professions across the country. As a national
health care system, it is imperative for VA to be able to recruit and
retain health care professionals, where recruitment and retention is
difficult, to ensure there is access to health care regardless of where
the VA beneficiary resides. Permitting VA health care professionals to
practice across State lines is an important incentive when trying to
recruit for these vacancies, particularly during a pandemic, where
private health care facilities have greater flexibility to offer more
competitive pay and benefits. This is also especially beneficial in
recruiting spouses of active service members who frequently move across
the country.
National Standard of Practice
This rulemaking also confirms VA's authority to establish national
standards of practice for health care professions. We note that this
rulemaking does not create any such national standards; all national
standards of practice will be created via policy. For the purposes of
this rulemaking, a national standard of practice describes the tasks
and duties that a VA health care professional practicing in the health
care profession may perform and may be permitted to undertake. Having a
national standard of practice means that individuals from the same VA
health care profession may provide the same type of tasks and duties
regardless of the VA medical facility where they are located or the
State license, registration, certification, or other State requirement
they hold. We emphasize that VA will determine, on an individual basis,
that a health care professional has the necessary education, training,
and skills to perform the tasks and duties detailed in the national
standard of practice.
The need for national standards of practice have been highlighted
by VA's large-scale initiative regarding the new electronic health
record (EHR). VA's health care system is currently undergoing a
transformational initiative to modernize the system by replacing its
current EHR with a joint EHR with Department of Defense (DoD) to
promote interoperability of medical data between VA and DoD. VA's new
EHR system will provide VA and DoD health care professionals with quick
and efficient access to the complete picture of a veteran's health
information, improving VA's delivery of health care to our nation's
veterans.
For this endeavor, DoD and VA established a joint governance over
the EHR system. In order to be successful, VA must standardize clinical
processes with DoD. This means that all health care professionals in
DoD and VA who practice in a certain health care profession must be
able to carry out the same duties and tasks irrespective of State
requirements. The reason why this is important is because each health
care profession is designated a role in the EHR system that sets forth
specific privileges within the EHR that dictate allowed tasks for such
profession. These tasks include, but are not limited to, dispensing and
administrating medications; prescriptive practices; ordering of
procedures and diagnostic imaging; and required level of oversight. VA
has the ability to modify these privileges within EHR, however, VA
[[Page 71841]]
cannot do so on an individual user level, but rather at the role level
for each health care profession. In other words, VA cannot modify the
privileges for all health care professionals in one State to be
consistent with that State's requirements; instead, the privileges can
only be modified for every health care professional in that role across
all States. Therefore, the privileges established within EHR cannot be
made facility or State specific.
In order to achieve standardized clinical processes, VA and DoD
must create the uniform standards of practice for each health care
specialty. Currently, DoD has specific authority from Congress to
create national standards of practice for their health care
professionals under 10 U.S.C. 1094. While VA lacks a similarly specific
statute, VA has the general statutory authority, as explained above, to
regulate its health care professionals and authorize health care
practices that preempt conflicting State law. This regulation will
confirm VA's authority to do so. Absent such standardized practices, it
will be incredibly difficult for VA to achieve its goal of being an
active participant in EHR modernization because either some VA health
care professionals would fear potential adverse State actions or DoD
and VA would need to agree upon roles that are consistent with the most
restrictive States' requirements to ensure that all health care
professionals are acting within the scope of their State requirements.
VA believes that agreement upon roles that are consistent with the most
restrictive State is not an acceptable option because it will lead to
delayed care and consequently decreased access and level of health care
for VA beneficiaries.
One example that impacts multiple health care professions
throughout the VA system is the ability to administer medication
without a provider (physician or advanced practice nurse practitioner)
co-signature. As it pertains to nursing, almost all States permit
nurses to follow a protocol; however, some States, such as New York,
North Carolina, and South Carolina, do not permit nurses to follow a
protocol without a provider co-signature. A protocol is a standing
order that has been approved by medical and clinical leadership if a
certain sequence of health care events occur. For instance, if a
patient is exhibiting certain signs of a heart attack, there is a
protocol in place to administer potentially life-saving medication. If
the nurse is the first person to see the signs, the nurse will follow
the approved protocol and immediately administer the medication.
However, if the nurse cannot follow the protocol and requires a
provider co-signature, administration of the medication will be delayed
until a provider is able to co-sign the order, which may lead to the
deterioration of the patient's condition. This also increases the
provider's workload and decreases the amount of time the provider can
spend with patients.
Historically, VA physical therapists (PTs), occupational
therapists, and speech therapists were routinely able to determine the
need to administer topical medications during therapy sessions and were
able to administer the topical without a provider co-signature.
However, in order to accommodate the new EHR system and variance in
State requirements, these therapists would need to place an order for
all medications, including topicals, which would leave these therapists
waiting for a provider co-signature in the middle of a therapy session,
thus delaying care. Furthermore, these therapists also routinely
ordered imaging to better assess the clinical needs of the patient, but
would also have to wait for a provider co-signature, which will further
delay care and increase provider workload.
In addition to requiring provider co-signatures, there will also be
a significant decrease in access to care due to other variances in
State requirements. For instance, direct access to PTs will be limited
in order to ensure that the role is consistent with all State
requirements. Direct access means that a beneficiary may request PT
services without a provider's referral. However, while almost half of
the States allow unrestricted direct access to PTs, over half of the
States have some limitations on requesting PT services. For instance,
in Alabama, a licensed PT may perform an initial evaluation and may
only provide other services as delineated in specific subdivisions of
the Alabama Physical Therapy Practice Act. Furthermore, in New York, PT
treatment may be rendered by a licensed PT for 10 visits or 30 days,
whichever shall occur first, without a referral from a physician,
dentist, podiatrist, nurse practitioner, or licensed midwife. This is
problematic as VA will not be able to allow for direct access due to
these variances and direct access has been shown to be beneficial for
patient care. Currently, VISN 23 is completing a two-year strategic
initiative to implement direct access and have PTs embedded into
patient aligned care teams (PACT). Outcomes thus far include decreased
wait times, improved veteran satisfaction, improved provider
satisfaction, and improved functional outcomes.
Therefore, VA will confirm its authority to ensure that health care
professionals are protected against State action when they adhere to
VA's national standards of practice. We reiterate that this rulemaking
does not establish national standards of practice for each health care
profession, but merely confirms VA's authority to do so, thereby
preempting any State restrictions that unduly interfere with those
practices. The actual national standards of practice will be developed
in subregulatory policy for each health care profession. As such, VA
will make a concerted effort to engage appropriate stakeholders when
developing the national standards of practice.
Preemption
As previously explained, in this rulemaking, VA is confirming its
authority to manage its health care professionals. Specifically, this
rulemaking will confirm VA's long-standing practice of allowing its
health care professionals to practice in a State where they do not hold
a license, registration, certification, or satisfy some other State
requirement. The rule will also confirm that VA health care
professionals must adhere to VA's national standards of practice, as
determined by VA policy, irrespective of conflicting State licensing,
registration, certification, or other State requirements that unduly
burden that practice. We do note that VA health care professionals will
only be required to perform tasks and duties to the extent of their
education, skill, and training. For instance, VA would not require a
registered nurse to perform a task that the individual nurse was not
trained to perform.
Currently, practice in accordance with VA employment, including
practice across State lines or adhering to a VA standard of practice,
may jeopardize VA health care professionals' credentials or result in
fines and imprisonment for unauthorized health care practice. This is
because most States have restrictions that limit health care
professionals' practice or have rules that prohibit health care
professionals from furnishing health care services within that State
without a license, registration, certification, or other requirement
from that State. We note that, some States, for example Rhode Island,
Utah, and Michigan, have enacted legislation or regulations that
specifically allow certain VA health care professionals to practice in
those States when they do not hold a State license.
Several VA health care professionals have already had actions
proposed or taken against them by various States
[[Page 71842]]
while practicing health care within the scope of their VA employment,
while they either practiced in a State where they do not hold a
license, registration, certification, or other State requirement that
unduly interfered with their VA employment. In one instance, a VA
psychologist was licensed in California but was employed and providing
supervision of a trainee at the VA Medical Center (VAMC) in Nashville,
Tennessee. California psychology licensing laws require supervisors to
hold a license from the State where they are practicing and do not
allow for California licensed psychologists to provide supervision to
trainees or unlicensed psychologists outside the State of California.
The California State Psychology Licensing Board proposed sanctions and
fines of $1,000 for violating section 1387.4(a) of the CA Code of
Regulations (CCR). The VA system did not qualify for the exemption of
out of State supervision requirements listed in CCR section 1387.4. In
addition, a VA physician who was licensed in Oregon, but was practicing
at a VAMC in Biloxi, Mississippi had the status of their license
changed from active to inactive because the Oregon Medical Board
determined the professional did not reside in Oregon, in violation of
Oregon's requirement that a physician physically reside in the State in
order to maintain an active license.
This rulemaking serves to preempt State requirements, such as the
ones discussed above, that were or can be used to take an action
against VA health care professionals for practicing within the scope of
their VA employment. State licensure, registration, certification, and
other State requirements are preempted to the extent such State laws
unduly interfere with the ability of VA health care professionals to
practice health care while acting within the scope of their VA
employment. As explained above, Congress provided general statutory
provisions that permit the VA Secretary to authorize health care
practices by health care professionals at VA, which serve to preempt
conflicting State laws that unduly interfere with the exercise of
health care by VA health care professionals pursuant to that
authorization. Although some VA health care professionals are required
by Federal statute to have a State license, see, e.g., 38 U.S.C.
7402(b)(1)(C) (providing that, to be eligible to be appointed to a
physician position at the VA, a physician must be licensed to practice
medicine, surgery, or osteopathy in a State), a State may not attach a
condition to the license that is unduly burdensome to or unduly
interferes with the practice of health care within the scope of VA
employment.
Under well-established interpretations of the Supremacy Clause,
Federal laws and policies authorizing VA health care professionals to
practice according to VA standards preempt conflicting State law: that
is, a State law that prevents or unreasonably interferes with the
performance of VA duties. See, e.g., Hancock v. Train, 426 U.S. 167,
178-81 (1976); Sperry v. Florida, 373 U.S. 379, 385 (1963); Miller v.
Arkansas, 352 U.S. 187 (1956); Ohio v. Thomas, 173 U.S. 276, 282-84
(1899); State Bar Disciplinary Rules as Applied to Federal Government
Attorneys, 9 Op. O.L.C. 71, 72-73 (1985). When a State law does not
conflict with the performance of Federal duties in these ways, VA
health care professionals are required to abide by the State law.
Therefore, VA's policies and regulations will preempt State licensure,
registration, and certification laws, rules, or other requirements only
to the extent they conflict with the ability of VA health care
professionals to practice health care while acting within the scope of
their VA employment.
We emphasize that, in instances where there is no conflict with
State requirements, VA health care professionals should abide by the
State requirement. For example, if a State license requires a health
care professional to have a certain number of hours of continuing
professional education per year to maintain their license, the health
care professional must adhere to this State requirement if it does not
prevent or unduly interfere with the exercise of VA employment. To
determine whether a State requirement is conflicting, VA would assess
whether the State law unduly interferes on a case-by-case basis. For
instance, if Oregon requires all licensed physicians to reside in
Oregon, VA would likely find that it unduly interferes with already
licensed VA physicians who reside and work for VA in the State of
Mississippi. We emphasize that the intent of the regulation is to only
preempt State requirements that are unduly burdensome and interfere
with a VA health care professionals' practice for the VA. For instance,
it would not require a State to issue a license to an individual who
does not meet the education requirements to receive a license in that
State. We note that this rulemaking also does not affect VA's existing
requirement that all VA health care professionals adhere to
restrictions imposed by the Controlled Substances Act, 21 U.S.C. 801 et
seq. and implementing regulations at 21 CFR 1300, et seq., to prescribe
or administer controlled substances.
Any preemption of conflicting State requirements will be the
minimum necessary for VA to effectively furnish health care services.
It would be costly and time-consuming for VA to lobby each State board
for each health care profession specialty to remove restrictions that
impair VA's ability to furnish health care services to beneficiaries
and then wait for the State to implement appropriate changes. Doing so
would not guarantee a successful result.
Regulation
For these reasons, VA is establishing a new regulation titled
Health care professionals' practice in VA, which will be located at 38
CFR 17.419. This rule will confirm the ability of VA health care
professionals to practice their health care profession consistent with
the scope and requirements of their VA employment, notwithstanding any
State license, registration, certification, or other requirements that
unduly interfere with their practice.
Subsection (a) of Sec. 17.419 contains the definitions that will
apply to the new section. Subsection (a)(1) contains the definition for
beneficiary. We are defining the term beneficiary to mean a veteran or
any other individual receiving health care under title 38 of the U.S.
Code. We are using this definition because VA provides health care to
veterans, certain family members of veterans, servicemembers, and
others. This is VA's standard use of this term.
Subsection (a)(2) contains the definition for health care
professional. We are defining the term health care professional to be
an individual who meets specific criteria that is listed below.
Subsection (a)(2)(i) will require that a health care professional
be appointed to an occupation in VHA that is listed or authorized under
38 U.S.C. 7306, 7401, 7405, 7406, or 7408 or title 5 of the U.S. Code.
Subsection (a)(2)(ii) requires that the individual is not a VA-
contracted health care professional. A health care professional does
not include a contractor or a community health care professional
because they are not considered VA employees nor appointed under 38
U.S.C. 7306, 7401, 7405, 7406, or 7408 or title 5 of the U.S. Code.
Subsection (a)(2)(iii) lists the required qualifications for a
health care professional. We note that these qualifications do not
include all general
[[Page 71843]]
qualifications for appointment, such as to hold a degree of doctor of
medicine; these qualifications are related to licensure, registration,
certification, or other State requirements.
Subsection (a)(2)(iii)(A) states that the health care professional
must have an active, current, full, and unrestricted license,
registration, certification, or satisfies another State requirement in
a State to practice the health care specialty identified under 38
U.S.C. 7402(b). This standard ensures that VA health care professionals
are qualified to practice their individual health care specialty if the
specialty requires such credential.
Subsection (a)(2)(iii)(B) states that the individual has other
qualifications as prescribed by the Secretary for one of the health
care professions listed under 38 U.S.C. 7402(b). Some health care
professionals appointed under 38 U.S.C. 7401(3) whose qualifications
are listed in 38 U.S.C. 7402(b) are not required to meet State license,
registration, certification, or other requirements and rely on the
qualifications prescribed by the Secretary. Therefore, these
individuals would be included in this subsection and required to have
the qualifications prescribed by the Secretary for their health care
profession.
Subsection (a)(2)(iii)(C) states that the individual is otherwise
authorized by the Secretary to provide health care services. This would
include those individuals who practice a health care profession that
does not require a State license, registration, certification, or other
requirement and is also not listed in 38 U.S.C. 7402(b), but is
authorized by the Secretary to provide health care services.
Subsection (a)(2)(iii)(D) includes individuals who are trainees or
may have a time limited appointment to finish clinicals or other
requirements prior to being fully licensed. Therefore, the regulation
will state that the individual is under the clinical supervision of a
health care professional that meets the requirements listed in
subsection (a)(2)(iii)(A)-(C) and the individual must meet the
requirements in subsection (a)(2)(iii)(D)(i) or (a)(2)(iii)(D)(ii).
Subsection (a)(2)(iii)(D)(i) states that the individual is a health
professions trainee appointed under 38 U.S.C. 7405 or 7406
participating in clinical or research training under supervision to
satisfy program or degree requirements.
Subsection (a)(2)(iii)(D)(ii) states that the individual is a
health care employee, appointed under title 5 of the U.S. Code, 38
U.S.C. 7401(1) or (3), or 38 U.S.C. 7405 for any category of personnel
described in 38 U.S.C. 7401(1) or (3) who must obtain an active,
current, full and unrestricted licensure, registration, or
certification or meet the qualification standards as defined by the
Secretary within the specified time frame. These individuals have a
time-limited appointment to obtain credentials. For example, marriage
and family therapists require a certain number of supervised clinical
post-graduate hours prior to receiving their license.
Lastly, as we previously discussed in this rulemaking, we are
defining the term State in subsection (a)(3) as the term is defined in
38 U.S.C. 101(20), and also including political subdivisions of such
States. This is consistent with the definition of State in 38 U.S.C.
1730C(f) which is VA's statutory authority to preempt State law when
the covered health care professional is using telehealth to provide
treatment to an individual under this title. We believe that it is
important to define the term in the same way as it is defined for
health care professionals practicing via telehealth so that way it is
consistent regardless of whether the health care professional is
practicing in-person or via telehealth. Moreover, as subdivisions of a
State are granted legal authority from the State itself, it makes sense
to subject entities created by a State, or authorized by a State to
create themselves, to be subject to the same limitations and
restrictions as the State itself.
Section 17.419(b) details that VA health care professionals must
practice within the scope of their Federal employment irrespective of
conflicting State requirements that would prevent or unduly interfere
with the exercise of Federal duties. This provision confirms that VA
health care professionals may furnish health care consistent with their
VA employment obligations without fear of adverse action proposed or
taken by any State. In order to clarify and make transparent how VA
utilizes or intends to utilize our current statutory authority, we are
providing a non-exhaustive list of examples.
The first example is listed in subsection (b)(1)(i). It states that
a health care professional may practice their VA health care profession
in any State irrespective of the State where they hold a valid license,
registration, certification, or other qualification.
The second example is listed in subsection (b)(1)(ii). It states
that a health care professional may practice their VA health care
profession consistent with the VA national standard of practice as
determined by VA. As previously explained, VA intends to establish
national standards of practice via VA policy.
A health care professional's practice within VA will continue to be
subject to the limitations imposed by the Controlled Substances Act, 21
U.S.C. 801, et seq. and implementing regulations at 21 CFR 1300, et
seq., on the authority to prescribe or administer controlled
substances, as well as any other limitations on the provision of VA
care set forth in applicable Federal law and policy. This will ensure
that professionals are still in compliance with critical laws
concerning the prescribing and administering of controlled substances.
This requirement is stated in subsection (b)(2).
Subsection (c) expressly states the intended preemptive effect of
Sec. 17.419, to ensure that conflicting State and local laws, rules,
regulations, and requirements related to health care professionals'
practice will have no force or effect when such professionals are
practicing health care while working within the scope of their VA
employment. In circumstances where there is a conflict between Federal
and State law, Federal law would prevail in accordance with Article VI,
clause 2, of the U.S. Constitution.
Executive Order 13132, Federalism
Executive Order 13132 establishes principles for preemption of
State law when it is implicated in rulemaking or proposed legislation.
Where a Federal statute does not expressly preempt State law, agencies
shall construe any authorization in the statute for the issuance of
regulations as authorizing preemption of State law by rulemaking only
when the exercise of State authority directly conflicts with the
exercise of Federal authority or there is clear evidence to conclude
that the Congress intended the agency to have the authority to preempt
State law.
In this situation, the Federal statutes do not expressly preempt
State laws; however, VA construes the authorization established in 38
U.S.C. 303, 501, and 7401-7464 as authorizing preemption because the
exercise of State authority directly conflicts with the exercise of
Federal authority under these statutes. Congress granted the Secretary
express statutory authority to establish the qualifications for VA's
health care professionals, determine the hours and conditions of
employment, take disciplinary action against employees, and otherwise
regulate the professional activities of those individuals. 38 U.S.C.
7401-7464. Specifically, section 7402(b) states that most health care
professionals, after appointment by VA, must, among other
[[Page 71844]]
requirements, be licensed, registered, or certified to practice their
profession in a State. To that end, VA's regulations and policies will
preempt any State law or action that conflicts with the exercise of
Federal duties in providing health care at VA.
In addition, any regulatory preemption of State law must be
restricted to the minimum level necessary to achieve the objectives of
the statute pursuant to the regulations that are promulgated. In this
rulemaking, State licensure, registration, and certification laws,
rules, regulations, or other requirements are preempted only to the
extent such State laws unduly interfere with the ability of VA health
care professionals to practice health care while acting within the
scope of their VA employment. Therefore, VA believes that the
rulemaking is restricted to the minimum level necessary to achieve the
objectives of the Federal statutes.
The Executive Order also requires an agency that is publishing a
regulation that preempts State law to follow certain procedures. These
procedures include: The agency consult with, to the extent practicable,
the appropriate State and local officials in an effort to avoid
conflicts between State law and Federally protected interests; and the
agency provide all affected State and local officials notice and an
opportunity for appropriate participation in the proceedings. For the
reasons below, VA believes that it is not practicable to consult with
the appropriate State and local officials prior to the publication of
this rulemaking.
The National Emergency caused by COVID-19 has highlighted VA's
acute need to quickly shift health care professionals across the
country. As both private and VA medical facilities in different parts
of the country reach or exceed capacity, VA must be able to mobilize
its health care professionals across State lines to provide critical
care for those in need. As explained in the Supplementary Information
above, as of June 2020, a total of 1,893 staff have been mobilized to
meet the needs of our facilities and Fourth Mission requests during the
pandemic. VA deployed 877 staff to meet Federal Emergency Management
Agency (FEMA) Mission requests, 420 health care professionals were
deployed as DEMPS response, 414 employees were mobilized to cross level
staffing needs within their Veterans Integrated Service Networks
(VISN), 69 employees were mobilized to support needs in another VISN,
and 113 Travel Nurse Corps staff responded specifically for COVID-19
staffing support. Given the speed in which it is required for our
health care professionals to go to these facilities and provide health
care, it is also essential that the health care professionals can
follow the same standards of practice irrespective of the location of
the facility or the requirements of their individual State license.
This is important because if multiple health care professionals, such
as multiple registered nurses, licensed in different States are all
sent to one VA medical facility to assist when there is a shortage of
professionals, it would be difficult and cumbersome if they could not
all perform the same duties and each supervising provider had to be
briefed on the tasks each registered nurse could perform. In addition,
not having a uniform national scope of practice could limit the tasks
that the registered nurses could provide. This rulemaking will provide
health care professionals an increased level of protection against
adverse State actions while VA strives to increase access to high
quality health care across the VA health care system during this
National Emergency. It would be time consuming and contrary to the
public health and safety to delay implementing this rulemaking until we
consulted with State and local officials. For these reasons, it would
be impractical to consult with State and local officials prior to the
publication of this rulemaking.
We note that this rulemaking does not establish any national
standards of practice; instead, VA will establish the national
standards of practice via subregulatory guidance. VA will, to the
extent practicable, make all efforts to engage with State and local
officials when establishing the national standards of practice via
subregulatory guidance. Also, this interim final rule will have a 60-
day comment period that will allow State and local officials the
opportunity to provide their input on the rule.
Administrative Procedures Act
An Agency may forgo notice and comment required under the
Administrative Procedures Act (APA), 5 U.S.C. 553, if the agency for
good cause finds that compliance would be impracticable, unnecessary,
or contrary to the public interest. An agency may also bypass the APA's
30-day publication requirement if good cause exists. The Secretary of
Veterans Affairs finds that there is good cause under the provisions of
5 U.S.C. 553(b)(B) to publish this rule without prior opportunity for
public comment because it would be impracticable and contrary to the
public interest and finds that there is good cause under 5 U.S.C.
553(d)(3) to bypass its 30-day publication requirement for the same
reasons as outlined above in the Federalism section, above.
In short, this rulemaking will provide health care professionals
protection against adverse State actions while VA strives to increase
access to high quality health care across the VA health care system
during this National Emergency.
In addition to the needs discussed above regarding the National
Emergency, it is also imperative that VA move its health care
professionals across State lines in order to facilitate the
implementation of the new EHR system immediately. VA implemented EHR at
the first VA facility in October 2020 and additional sites are
scheduled to have EHR implemented over the course of the next eight
years. The next site is scheduled for implementation in Quarter 2 of
Fiscal Year 2021 (i.e., between January to March 2021). Due to the
implementation of the new EHR system, VA expects decreased productivity
and reduced clinical staffing during training and other events
surrounding EHR enactment. VA expects a productivity decrease of up to
30 percent for the 60 days before implementation and the 120 days after
at each site. Any decrease in productivity could result in decreased
access to health care for our Nation's veterans.
In order to support this anticipated productivity decrease, VA is
engaging in a ``national supplement,'' where health care professionals
from other VA medical facilities will be deployed to those VA medical
facilities and VISNs that are undergoing EHR implementation. The
national supplement would mitigate reduced access during EHR deployment
activities, such as staff training, cutover, and other EHR
implementation activities. Over the eight-year deployment timeline, the
national supplement is estimated to have full time employee equivalents
of approximately 60 nurses, 3 pharmacy technicians, 5 mental health and
primary care providers, and other VA health care professionals. We note
that the actual number of VA health care professionals deployed to each
site will vary based on need. The national supplement will require VA
health care professionals on a national level to practice health care
in States where they do not hold a State license, registration,
certification, or other requirement. In addition, VISNs will be
providing local cross-leveling and intra-VISN staff deployments to
support EHRM implementation activities. Put simply, in order to
mitigate the decreased
[[Page 71845]]
productivity as a result of EHR implementation, VA must transfer VA
health care professionals across the country to States where they do
not hold a license, registration, certification, or other requirement
to assist in training on the new system as well as to support patient
care.
Therefore, it would be impracticable and contrary to the public
health and safety to delay implementing this rulemaking until a full
public notice-and-comment process is completed. This rulemaking will be
effective upon publication in the Federal Register. As noted above,
this interim final rule will have a 60-day comment period that will
allow State and local officials the opportunity to provide their input
on the rule, and VA will take those comments into consideration when
deciding whether any modifications to this rule are warranted.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable
to this rulemaking because a notice of proposed rulemaking is not
required under 5 U.S.C. 553. 5 U.S.C. 601(2), 603(a), 604(a).
Executive Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess the
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 effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is a significant regulatory action under Executive Order
12866.
VA's impact analysis can be found as a supporting document at
http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's website at
http://www.va.gov/orpm/, by following the link for ``VA Regulations
Published From FY 2004 Through Fiscal Year to Date.''
This interim final rule is not subject to the requirements of E.O.
13771 because this rule results in no more than de minimis costs.
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 issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This interim final rule will have no such
effect on State, local, and tribal governments, or on the private
sector.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
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; 64.018, Sharing Specialized
Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug
Dependence; 64.022, Veterans Home Based Primary Care; 64.039 CHAMPVA;
64.040 VHA Inpatient Medicine; 64.041 VHA Outpatient Specialty Care;
64.042 VHA Inpatient Surgery; 64.043 VHA Mental Health Residential;
64.044 VHA Home Care; 64.045 VHA Outpatient Ancillary Services; 64.046
VHA Inpatient Psychiatry; 64.047 VHA Primary Care; 64.048 VHA Mental
Health Clinics; 64.049 VHA Community Living Center; and 64.050 VHA
Diagnostic 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, Reporting and
recordkeeping requirements, Scholarships and fellowships, Travel and
transportation expenses, Veterans.
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. Brooks D.
Tucker, Assistant Secretary for Congressional and Legislative Affairs,
Performing the Delegable Duties of the Chief of Staff, Department of
Veterans Affairs, approved this document on October 19, 2020, for
publication.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs is amending 38 CFR part 17 as set forth below:
PART 17--MEDICAL
0
1. The authority citation for part 17 is amended by adding an entry for
Sec. 17.419 in numerical order to read in part as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Section 17.419 also issued under 38 U.S.C. 1701 (note), 7301, 7306,
7330A, 7401-7403, 7405, 7406, 7408).
* * * * *
0
2. Add Sec. 17.419 to read as follows:
Sec. 17.419 Health care professionals' practice in VA.
(a) Definitions. The following definitions apply to this section.
(1) Beneficiary. The term beneficiary means a veteran or any other
individual receiving health care under title 38 of the United States
Code.
(2) Health care professional. The term health care professional is
an individual who:
(i) Is appointed to an occupation in the Veterans Health
Administration that is listed in or authorized under 38 U.S.C. 7306,
7401, 7405, 7406, or 7408 or title 5 of the U.S. Code;
(ii) Is not a VA-contracted health care professional; and
(iii) Is qualified to provide health care as follows:
(A) Has an active, current, full, and unrestricted license,
registration, certification, or satisfies another State requirement in
a State;
(B) Has other qualifications as prescribed by the Secretary for one
of
[[Page 71846]]
the health care professions listed under 38 U.S.C. 7402(b);
(C) Is an employee otherwise authorized by the Secretary to provide
health care services; or
(D) Is under the clinical supervision of a health care professional
that meets the requirements of subsection (a)(2)(iii)(A)-(C) of this
section and is either:
(i) A health professions trainee appointed under 38 U.S.C. 7405 or
7406 participating in clinical or research training under supervision
to satisfy program or degree requirements; or
(ii) A health care employee, appointed under title 5 of the U.S.
Code, 38 U.S.C. 7401(1) or (3), or 38 U.S.C. 7405 for any category of
personnel described in 38 U.S.C. 7401(1) or (3) who must obtain an
active, current, full and unrestricted licensure, registration,
certification, or meet the qualification standards as defined by the
Secretary within the specified time frame.
(3) State. The term State means a State as defined in 38 U.S.C.
101(20), or a political subdivision of such a State.
(b) Health care professional's practice. (1) When a State law or
license, registration, certification, or other requirement prevents or
unduly interferes with a health care professional's practice within the
scope of their VA employment, the health care professional is required
to abide by their Federal duties, which includes, but is not limited
to, the following situations:
(i) A health care professional may practice their VA health care
profession in any State irrespective of the State where they hold a
valid license, registration, certification, or other State
qualification; or
(ii) A health care professional may practice their VA health care
profession within the scope of the VA national standard of practice as
determined by VA.
(2) VA health care professional's practice is subject to the
limitations imposed by the Controlled Substances Act, 21 U.S.C. 801 et
seq. and implementing regulations at 21 CFR 1300 et seq., on the
authority to prescribe or administer controlled substances, as well as
any other limitations on the provision of VA care set forth in
applicable Federal law and policy.
(c) Preemption of State law. Pursuant to the Supremacy Clause, U.S.
Const. art. IV, cl. 2, and in order to achieve important Federal
interests, including, but not limited to, the ability to provide the
same complete health care and hospital service to beneficiaries in all
States as required by 38 U.S.C. 7301, conflicting State laws, rules,
regulations or requirements pursuant to such laws are without any force
or effect, and State governments have no legal authority to enforce
them in relation to actions by health care professionals within the
scope of their VA employment.
[FR Doc. 2020-24817 Filed 11-10-20; 8:45 am]
BILLING CODE 8320-01-P
