[Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Rules and Regulations]
[Pages 54367-54368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21816]



38 CFR Part 1

RIN 2900-AN95

Sharing Information Between the Department of Veterans Affairs 
and the Department of Defense

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: This document adopts as final, without change, the interim 
final rule published in the Federal Register on October 20, 2011. This 
final rule removes a Department of Veterans Affairs (VA) regulatory 
restriction on the sharing of certain medical information with the 
Department of Defense (DoD) that is not required by the applicable 
statute and is inconsistent with the intent and purpose of that 

DATES: Effective Date: September 5, 2012.

FOR FURTHER INFORMATION CONTACT: Stephania Griffin, Veterans Health 
Administration Privacy Officer (10P2C1), Health Information Governance, 
Office of Informatics and Analytics, Veterans Health Administration, 
Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 
20420, (704) 245-2492. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Section 7332(a)(1) of title 38, United 
States Code, affords special protection against the disclosure of VA 
medical ``[r]ecords of the identity, diagnosis, prognosis, or treatment 
of any patient or subject which are maintained in connection with the 
performance of any program or activity (including education, training, 
treatment, rehabilitation, or research) relating to drug abuse, 
alcoholism or alcohol abuse, infection with the human immunodeficiency 
virus, or sickle cell anemia.'' However, an exception in section 
7332(e) states: ``The prohibitions of this section shall not prevent 
any interchange of records--(1) within and among those components of 
[VA] furnishing health care to veterans, or determining eligibility for 
benefits under this title; or (2) between such components furnishing 
health care to veterans and the Armed Forces.''
    VA implemented section 7332(e) in 38 CFR 1.461(c)(1); however, in 
so doing, we imposed an additional restriction on the scope of 
information that may be exchanged between VA and DoD, limiting it to 
only ``information pertaining to a person relating to a period when 
such person is or was subject to the Uniform Code of Military 
Justice.'' This restriction was narrower than the statutory 
restriction, and it impeded VA's ability to share with DoD important 
medical information pertaining to veterans and to coordinate their care 
and treatment. Further, the restriction impeded VA's ability to fully 
engage in Presidential- and Congressional-supported interoperability 
initiatives with DoD, such as electronic health record initiatives. 
This regulatory limitation was not intended to have these negative 
results on VA's ability to provide comprehensive high-quality health 
care to veterans and, where applicable, to support DoD in similarly 
caring for servicemembers and military retirees.
    On October 20, 2011, VA published in the Federal Register, at 76 FR 
65133, an interim final rule that amended 38 CFR 1.461(c)(1) to better 
conform to authority granted to VA by Congress. Interested persons were 
invited to submit comments on or before December 19, 2011, and we 
received a total of 3 comments. All of the issues raised by the 
commenters are addressed below.
    Two commenters stated general concerns regarding access to 
electronic medical records by DoD and the security of those records 
from inappropriate disclosure or access. VA is committed to the 
appropriate protection, use, and disclosure of information maintained 
and exchanged by VA in the course of official business and to ensuring 
the security of that information. The amendment to 38 CFR 1.461(c)(1) 
allows VA to fulfill Congress' clear intention that VA and DoD engage 
in the exchange of records, but does not affect the requirement of 38 
U.S.C. 7332(e)(2) that limits VA disclosures to components of DoD that 
are ``furnishing health care to veterans.'' We do not make any changes 
based on these comments.
    One commenter asserted that this regulation would create a breach 
of confidentiality by allowing DoD to access a veteran's health 
information without authorization by the veteran. However, the 
commenter also agreed that it is important that VA and DoD have access 
to veterans' medical information to ensure continuity of care, safety, 
and for the provision of benefits. This regulation will ensure that 
this access is provided for those reasons by removing a specific 
restriction that was not required by the statutory authority. In 
addition, VA will continue to comply with all other applicable laws and 
regulations regarding access to medical records, including those that 
limit the use and disclosure of information to specifically authorized 
disclosures. We do not make any changes based on this comment.
    One commenter suggested that additional language be included in the 
final rule to prevent the misuse of information ``for unintended, 
alterative [sic] purposes beyond medical care.'' Otherwise, disclosure 
of information for purposes other than medical care ``may deter 
veterans from seeking care and/or disability compensation'' from VA. 
The suggested language focuses on the intended use of the information 
accessed under the rule. As we noted above, the amendment to the rule 
complies with the section 7332 limitations on the nature and purpose of 
information to be disclosed. Health care professionals, such as those 
accessing information through this provision, are already duty-bound to 
access health information consistent with law and professional 
standards. This rule does not limit or otherwise affect the enforcement 
of those laws and professional standards. Because we believe the 
suggested language is redundant of existing protections and because 
other laws and regulations govern such use and disclosure, we decline 
to further amend the regulation. We do not make any changes based on 
this comment.
    Based on the rationale set forth here, and in the interim final 
rule, we adopt the interim final rule as a final rule without any 

Effect of Rulemaking

    The Code of Federal Regulations, as revised by this final rule, 
represents the exclusive legal authority on this subject. No contrary 
rules or procedures are authorized. All VA guidance will be read to 
conform with this rulemaking if possible or, if not possible, such 
guidance is superseded by this rulemaking.

Paperwork Reduction Act

    This rule contains no collections of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

[[Page 54368]]

Regulatory Flexibility Act

    The Secretary hereby certifies 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 rule will not directly affect any small entities; 
only individuals could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 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, 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. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (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 this 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 Executive 
Order 12866.

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 rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are: 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; and 64.013, Veterans Prosthetic 

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, Department of Veterans Affairs, approved this 
document on August 29, 2012, for publication.

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Archives and records, 
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information, 
Government contracts, Government employees, Government property, 
Infants and children, Penalties, Privacy, Reporting and recordkeeping 
requirements, Security measures.

    Dated: August 30, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.


Accordingly, the interim final rule amending 38 CFR part 1, which was 
published at 76 FR 65133 on October 20, 2011, is adopted as a final 
rule without changes.
[FR Doc. 2012-21816 Filed 9-4-12; 8:45 am]