HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/PROP_FED/38CFR1.WS

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DEPARTMENT OF VETERANS AFFAIRS
38CFR Part 1

Confidentiality of Certain Medical Records

AGENCY: Department of Veterans Affairs.
ACTION: Proposed regulations.
SUMMARY: The Department of Veterans Affairs (VA) proposes to
amend its regulations to implement specific provisions of the
Veterans Omnibus Health Care Act of 1976 and the Veterans'
Benefits and Services Act of 1988 concerning the confidentiality
of certain medical records. These proposed regulations protect
the confidentiality of VA records pertaining to drug abuse,
alcoholism or alcohol abuse. infection with the human
immunodeficiency virus (HIV), and sickle cell anemia treatment,
rehabilitation, education, training, evaluation and research
information.

DATES: Comments must be received on or before August 25, 1993.
Comments will be available for public inspection until September
7, 1993.

ADDRESSES: Interested persons are invited to submit
written comments, suggestions, or objections regarding these
proposed regulations to: Secretary of Veterans Affairs (271A),
Department of Veterans Affairs, 810 Vermont Avenue, NW.,
Washington, DC 20420. All written comments received will be
available for public inspection only in the Veterans Services
Unit, room 132 of the above address, between the hours of 8 a.m.
and 4:30 p.m., Monday through Friday (except holidays) until
September 7, 1993. A copy of any comments that concern
information collection requirements should also be sent to the
Office of Management and Budget at the address contained in the
Paper work Reduction section of this preamble.

FOR FURTHER INFORMATION CONTACT:
Harold Ramsey. Program Specialist, Medical Administration Service
(161B4), Veterans Health Administration, Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202)
535-7657
SUPPLEMENTARY INFORMATION: VA is mandated by the
Veterans Omnibus Health Care Act of 1976 and the Veterans'
Benefits and Services Act of 1988 to publish its own regulations
relative to the confidentiality of medical records relating to
drug abuse, alcoholism or alcohol abuse, infection with the HIV,
and sickle cell anemia. VA, generally, has been following the
Department of Health and Human Services' regulations on drug and
alcohol abuse which were published in the Federal Register, July
1, 1975. The Department of Health and Human Services (HHS)
regulations (42 CFR 2.1-2.67) were promulgated with the enactment
of legislation specific to alcohol and drug abuse programs and
confidentiality of records. The proposed regulations take into
consideration the existing HHS regulations in implementing the
confidentiality section of the Veterans Omnibus Health Care Act of 1976. Editorial and substantive changes were made to the HHS
regulations which were published in the Federal Register, June 9,
1987. For convenience in comparing specific sections of the
existing HHS regulations with these proposed VA regulations a
cross index has been prepared which is set forth below.
The historical development of the regulations follow. Public Law
93-282, "Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment, and Rehabilitation Act Amendments of 1974,"
provided that the then Administrator of Veterans Affairs, through
the then Chief Medical Director, consistent with responsibilities
under title 38, United States Code, prescribe regulations
applicable to the confidentiality of medical records maintained
in connection with the provision of hospital care, nursing home
care, domiciliary care and medical services under title 38 to
patients suffering from alcohol abuse, alcoholism, and drug
abuse. In prescribing and implementing these regulations. the
Secretary of Veterans Affairs is to consult with the Secretary of
HHS in order to achieve the maximum possible coordination of the
regulations.
  Congress, recognizing that the particular problems of
confidentiality of records in the VA health care system would
best be handled by placing applicable provisions in Title 38,
United States Code. added a new section 4132, now section
7332, to title 38, United States Code, with the enactment of
Public Law 94-581, Veterans Omnibus Health Care Act of 1976. The
intent of this legislation was to ensure confidentiality of
certain medical records by establishing sanctions for
unauthorized disclosure of Information, while at the same time,
meeting the legitimate needs for disclosure under certain
conditions. As part of this legislation, Congress Imposed upon VA
requirements similar to those of Public Law 93-282 noted
above (38 U.S.C. 7334, formerly 4134).
    Section 111 of Public Law 94-581 replaced for VA purposes,
the provisions of sections 122(a) and 303 of Public Law 93-
282 (21 U.S.C. 1175, for drug records; 42 U.S.C. 4582, for
alcohol records) as the statutory base for confidentiality of
drug and alcohol abuse records for those patients treated by
VA medical facilities. Additionally, it replaced section 109
of Public Law 93-82 (38 U.S.C. 1753(b), formerly 653(b))
which provided for confidentiality of sickle cell anemia
records and required VA to promulgate regulations. Public Law
94-581, Veterans Omnibus Health Care Act of 1976, addressed
all three subjects drug abuse, alcoholism and sickle cell anemia
records-in its confidentiality mandate. Section 121 of Public
Law 100-322 provided for the confidentiality of records
relating to infection with the HIV. Accordingly, drug and
alcohol-abuse, infection with HIV, and sickle cell
anemia records are included In these proposed regulations.
VA has followed regulations on the confidentiality of patients'
records related to drug and alcohol abuse as prescribed in
1975 by the Secretary of HHS. However, certain provisions of
the HHS regulations are inconsistent with VA requirements.
These proposed regulations address those inconsistencies, some of
which follow. The concept of program as used in the HHS
regulations does not have applicability to VA because, in VA,
provision of medical care and treatment for the aforementioned
conditions is considered to be an integral part of VA's medical
and benefits functions rather than a separate roam isolated from
other Department functions.
    The HHS regulations leave the determination to destroy
patient records to officials of an individual drug or alcohol
abuse program. VA has a Department wide policy regarding record
retention
   The drafting of these proposed regulations has necessarily
involved  minor clarifying and editorial changes in the HHS
regulations to more specifically use VA terminology and
already established requirements. Further, changes have
addressed in consistencies between the HHS and VA applicable
confidentiality statutes as well. For example, whereas the
HHS regulations do not qualify the conditions under which
disclosure of information from the records of deceased
patients may be made, 38 U.S.C 7332 generally only allows this
disclosure with consent of the patient's next of kin or
personal representative when the purpose has been determined by
the Under Secretary for Health or designee to be necessary
to obtain VA or other survivorship benefits.
   The HHS regulations as well as 38 U.S.C. 7332 allow for
disclosure by an appropriate court order after the court
determines the need for disclosure and imposes appropriate
safeguards against unauthorized disclosure. These proposed
regulations clarify the court order process and restrict
mandatory disclosure to a Federal court. A VA facility in these
regulations, as part of the Federal government, is not bound by
an order from a State court, but may, In its discretion, honor a
State court order. However, it is contemplated that VA will
cooperate with State courts to the fullest extent appropriate.
   The HHS regulations as revised in 1987 cover only alcohol and
 drug abuse in formation that is obtained by a specialized
 program or specific provider whose primary function is the
 provision of alcohol or drug abuse diagnosis, treatment, or
 referral for treatment. The 1987 regulations do not cover
 alcohol and drug abuse information obtained by health care
 facilities which provide alcohol and drug abuse care only as an
 incident to the provision of general medical care. The proposed
 regulations have been drafted to include all records which are
 maintained in connection with the performance of any VA
 program or activity (including education, training, evaluation.
 treatment, rehabilitation or research) relating to drug abuse,
alcoholism, infection with the WV, or sickle cell anemia in order
to provide greater confidentiality for patients who are provided
care for these conditions.
    Finally, these regulations are not intended to direct the
manner in which substantive functions, such as research,
treatment, and evaluation should be carried out, but rather to
define the minimum requirements for the protection of
confidentiality of patient records which must be satisfied in
connection with the conduct of those functions in order to carry
out the purposes of the authorizing legislation.
    A copy of the draft regulations were reviewed by HHS staff
and comments were provided for consideration concerning five proposed changes. It was suggested in the first comment that the
definition of "patient" proposed at  1.460(h) be revised to
track the HHS definition at 42 CFR 2.11 and that a sentence be
added to clarify the definition. The definition was revised
based on these comments. In the second comment it was suggested
that the Public Health Service research confidentiality
protection that is mentioned at 42 CFR 2.21 of the HHS
regulations be incorporated into  1.468(a) and applied to VA
records. The addition was made to the proposed regulations.
 The third comment concerned the proposed  1.475(c) which
requires that when VA Is presented with an insufficient written
consent for information protected by 38 U.S.C. 7332 in the
process of obtaining a legally sufficient consent, VA must
correspond only with the patient whose records are involved. It
was suggested that VA consider permitting its facilities to
notify an inquiring party of the application of 38 U.S.C. 7332
and these regulations to patient records on alcohol and drug
abuse, WV, and sickle cell anemia as is provided for In 42 CFR
2.13(c)(2) for drug and alcohol records. It was further suggested
that such notification should not affirmatively state that VA
confidentiality laws apply to the records of an Identified
patient. This suggestion was not accepted, however, due to the
statutory  amendment to section 7332 which prohibits the
disclosure to any person or entity other than the patient or
subject concerned of the fact that a special written consent is
required in order for such records to be disclosed.
    It was suggested in the fourth comment that provisions be
added to the proposed regulations to permit the disclosure of
records protected by 38 U.S.C. 7332 in making child abuse and
neglect reports under State law. VA cooperates in submitting
child abuse and neglect reports to States but the reports do not
include section 7332 type information. However, where there Is a
medical emergency which necessitates the disclosure of this type
of information, the information may be disclosed. In the absence
of a medical emergency where disclosure is indicated, a court
order would authorize disclosure. Public Law 99-401, August 27,
1986, Title I, section 106, 100 Stat. 907, which amended 42
U.S.C. 290ee-3(e) and 290ee-3(e) to authorize reporting of child
abuse information did not amend 38 U.S.C. 7332. In view of these
additional provisions for disclosure of the  7332 information,
the suggestion was not accepted.
 The last comment concerned the requirement in  1.486(a) that
the disclosure of HIV information under State public health
reporting laws must be consistent with 38 U.S.C 5701, formerly
3301, and 7332, i.e., that such State laws must require such
disclosure and provide for a penalty or fine to be assessed
against those individuals who are subject to the jurisdiction of
the public health authority but fail to comply with the reporting
requirements. There was concern that this requirement would lead
to the underreporting to public health authorities of individuals
who are infected with the HIV. However, this concern was resolved
when it was determined that with the exception of one State
statute all other State statutes meet the HIV infection reporting
requirements of Title 38.

Cross Index
VA Regulations governing release of information from VA records
containing information related to drug abuse. alcoholism or
alcohol abuse, infection with the human immunodeficiency virus,
or sickle cell anemia.

Department of Health and Human Services regulations, 42 CFR part
2 as revised June 6, 1987, and Department of Veterans Affairs
regulations, 38 CFR 1.460 to 1.499.
Subpart A-Introduction
2.1
2.2
2.3-Supplemented by an unnumbered abbreviated, prefatory
statement
2.4-1,463
2.5-Eliminated

Subpart B-General Provisions
2.11-1.460
2.12-1.461
2.13-1.462
2.14-1.464
2.15-1.465
2.16-1.466
2.17-1.461
2.18-1.467
2.19-Eliminated
2.20-Eliminated
2.21-1.468
2.22-Eliminated
2.23-1.469

Subpart C-Disclosures With Patient's Consent
2.31-1.475
2.32-1.476
2.33-1.477
2.34-1.478
2.35-1.479
Subpart D-Disclosures Without Patient Consent
2.51-1.485
2.52-1.488
2.53-1.489

Subpart E-Court Orders Authorizing Disclosures and Use
2.61-1.490
2.62-1.491
2.68-Eliminated
2.64-1.492
2.65-1.493
2.66-1.494
2.67-1.495

 These proposed regulations are considered nonmajor under the criteria of Executive Order 12291, Federal Regulation. They will
not have an annual effect on the economy of $100 million or more;
will result in no significant increase in costs or prices for
consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. They will have no
adverse effect on competition, employment, investment,
productivity, innovation, or on the ability of United States-
based enterprises to compete with foreign-based enterprises in
domestic or export market.
 These proposed regulations will impose no regulatory, paperwork
or administrative burdens on small entities since the change
concerns the protection of patient medical in formation regarding
drug or alcohol abuse, infection with the WV and sickle cell
anemia. For this reason, the Secretary certifies that these
provisions are administrative and will not have a significant
economic impact on small entities as defined in 5 U.S.C 600-612,
The Regulatory Flexibility Act.

The Paperwork Reduction Act
 Section 1.475 of this proposed regulation contains an
information collection requirement requiring approval by the
Office of Management and Budget in accordance with the
requirements of the Paperwork Reduction Act. The Department of
Veterans Affairs estimates that it will take an average of five
minutes per respondent to provide the required information and
there will be approximately 20,640 such requests made per year.
As required by section 3504(h) of the Paperwork Reduction Act, VA
is submitting a request that OMB approve the information
collection requirement at  1.475. Individuals desiring to submit
comments for consideration by OMB on this proposed information
collection should send them to Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington,
DC 20503, Attention: Joseph F. Lackey.

List of Subjects in 38 CFR Part 1
Administrative procedures, Privacy Act, Recordkeeping.

Approved: March 22, 1993
Jesse Brown
Secretary of Veteran Affairs.

For the reasons set out in the preamble, 38 CFR part 1 is
proposed to be amended as follows:

PART GENERAL

1. New center headings and Sections 1.460 through 1.499 are
added as follows:

Release of Information From Department of Veterans Affairs (VA)
Records Relating to Drug Abuse, Alcoholism or Alcohol Abuse,
Infection With the Human Immunodeficiency Virus (HIV), or Sickle
Call Anemia.
Sec.
1.460  Definitions
1.461  Applicability.
1.462  Confidentiality restrictions.
1.463  Criminal penalty for violation
1.464  Minor patients
1.465  Incompetent and deceased patients
1.466  Security for records.
1.467  Restrictions on the use of identification cards and public signs.
1.468  Relationship to Federal statutes protecting research subjects against compulsory disclosure of their identity.
1.469  Patient access and restrictions on use.
1.470-1.474  (Reserved)

Disclosures with Patient's Consent
1.475  Form of written consent
1.476  Prohibition on redisclosure.
1.477  Disclosures Permitted with written Consent.
1.478  Disclosures to prevent multiple enrollments in detoxification and maintenance treatment programs not
       applicable to records relating to sickle cell anemia or
       infection with the human immunodeficiency virus.
1.479  Disclosures to elements of the criminal justice system which have refereed patients.
1.4801.484  (Reserved)

Disclosures Without Patient Consent
1.485  Medical emergencies
1.486  Disclosure of information related to infection with the human immunodeficiency virus to public health authorities.
1.487  Disclosure of Information related to Infection with the human immunodeficiency virus to the spouse or sexual
       partner of the patient
1.488  Research activities
1.489  Audit and evaluation activities.

Court Orders Authorizing Disclosure, and Use
1.490 Legal effect of order.
1.491 Order not applicable to records disclosed without consent to researchers, auditors and evaluators.
1.492 Procedures and criteria for orders authorizing disclosures ∞
for noncriminal purposes.

Sec.
1.493  Procedures end Criteria for orders authorizing disclosure end use of records to criminally invite or prosecute patients.
1.494  Procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute VA or employees
  of VA
1.495  Orders authorizing the use of undercover agents end informants to criminally Investigate employees or agents of
  VA
1.496-1.499 [Reserved]

Release of Information From Department of Veterans Affairs
Records Relating to Drug Abuse, Alcoholism or Alcohol Abuse,
Infection With the Human Immunodeficiency Virus (HIV), or Sickle
Cell Anemia.
Note: Sections 1.460 through 1.499 of this part concern the
confidentiality of information relating to drug abuse, alcoholism
or alcohol abuse, infection with the human immunodeficiency
virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of
information from VA records. Sections 1.500 through 1.527, Title
38, Code of Federal Regulations, implement the provisions of 38
U.S.C 5701 and 5702. Sections 1.550 through 1.559 implement the
provisions of 5 U.S.C 552 (The Freedom of Information Act).
Sections 1.575 through 1.584 implement the provisions of 5 U.S.C'
552a (The Privacy Act of 1974).
 Authority: The provisions of  1.460 through 1.499 of this
pertain to any program or activity, including education,
treatment, rehabilitation or research, which relates to drug
abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia. The statutory
authority for the drug abuse provisions an alcoholism or alcohol
abuse provisions of  1.460 through 1.499 is sec. 111 of Pub. L.
94-581, the Veterans Omnibus Health Care Act of 1976 (38 U.S.C.
7331 through 7334), the authority for the human immunodeficiency
virus provisions is Sec. 121 of Pub. L. 100-322, the Veterans
Benefits and Services Act of 1988(38 U.S.C 7332); the authority
for the sickle cell anemia provisions is sec. 109 of Pub. L.
9382, the Veterans Health tree Expansion Act of 1973 (38 U.S.C.
1751-1754, formerly 651854).

11.460   Definitions.
For purposes of  1.460 through 1.499 of this part, the
following definitions apply:
(a) Alcohol abuse. The term "alcohol abuse" means the use of an alcoholic beverage which impairs the physical, mental, emotional,
or social well-being of the user.
(b)Contractor. The term "contractor" means a person who provides
services to VA such as data processing; dosage. preparation,
laboratory analyses or medical or other professional services.
Each contractor  all be required to enter into a written
agreement subjecting such contractor to the provisions of  1.460 ∞
through  1.499 of this pert: 38 U.S.C. 5701 an 7332; and 5
U.S.C. 552a and 38 CFR 1.576(g).
(c) Diagnosis. The term "diagnosis" means any reference to an individual's alcohol or drug abuse or to a condition which is
identified as having been caused by that abuse or any reference
to sickle cell anemia or infection with the humanimmunodeficiency
virus which is made for the purpose of treatment or referral for
treatment. A diagnosis prepared for the purpose of treatment or
referral for treatment but which is not so used is covered by
1.460 through 1.499 of this part. These regulations do
no diagnosis of drug alcohol intoxication which clearly shows that the individual involved is not an alcohol or drug abuser
(e.g., involuntary ingestion of alcohol or drugs or reaction to a
prescribed dosage of one or more drugs).
 (d)Disclose or disclosure. The term "disclose" or "disclosure"
means a communication of patient identifying information, the
affirmative verification of another person's communication of
patient Identifying information, or the communication of any
information from the record of a patient who has been identified.
 (e)Drug Abuse. The term "drug abuse means the use of a
psychoactive substance for other than medicinal purposes which
Impairs the physical, mental, emotional, or social well-being of
the user.
 (f)Infection with the human immunodeficiency virus (HIV). The
term "infection with the human immunodeficiency virus (HIV)"
means the presence of laboratory evidence for human
immunodeficiency virus infection. For the purposes of 1.460
through 1.499 of this part, the term includes the
testing of an individual for the presence of the Virus or
antibodies to the virus and information related to such testing
(including tests with negative results).
 (g) Informant. The term "informant" means an individual who is a
patient or employee or who becomes a patient or employee at the
request of a law enforcement agency or official and who the
request of a law enforcement agency or official observes one or
more patients or employees for the purpose of reporting the
information obtained to the law enforcement agency or official
(h) Patient The term "patient" means any individual or subject
who has applied for or been given a diagnosis or treatment for
drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia and includes any
individual who, after arrest on a criminal charge, is interviewed
and/or tested in connection with drug abuse, alcoholism or
alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia in order to determine that individual's eligibility to participate in a treatment or rehabilitation program. The term patient includes an individual who has been diagnosed or treated for alcoholism, drug abuse, HIV infection, or sickle cell anemia for purposes of participation in a VA program or activity relating to those four conditions, including a program or activity consisting of treatment, rehabilitation, education, training, evaluation, or research. The term "patient" for the purpose of infection with the human immunodeficiency virus or sickle cell anemia, includes one tested for the disease.
(I)    Patient identifying information. The term "patient identifying information" means the name, address, social security
number, fingerprints, photograph, or similar information by which
the Identity of a patient can be determined with reasonable
accuracy and speed either directly or by reference to other
publicly available information. The term does not include a
number assigned to a patient by a treatment program, if that
number does not consist of, or contain numbers (such as social
security, or driver's license number) which could be used to
Identify a patient with reasonable accuracy speed from sources
external to the treatment program.
(j) Person. The term "person" means an individual, partnership,
corporation, Federal, State or local government agent or any
other legal entity.
(k)Records.The term "records" means any information received,
obtained or maintained, whether recorded or not, by an employee
or contractor of VA, for the purpose of seeking or performing VA
program or activity functions relating to drug abuse, alcoholism,
tests for or infection with the human immunodeficiency virus, or
sickle cell anemia regarding an identifiable patient. A program
or activity function relating to drug abuse, alcoholism,
infection with the human immunodeficiency virus, or sickle cell
anemia includes evaluation, treatment, education, training,
rehabilitation, research, or referral for one of these condition
Sections 1.460 through 1.499 of this part apply to a primary or
other diagnosis, or other information which identities, or could
reasonably be expected to identify, a patient as having drug or
alcohol abuse condition, infection with the human
immunodeficiency virus, or sickle cell anemia (e.g., alcoholic
psychosis, drug dependence), but only if such diagnosis or
information is received, obtained or maintained
for the purpose of seeking or performing one of  a above program
or activity functions. Sections 1.460 through 1.499 of this part
do not apply if such diagnosis or other information is not
received, obtained or maintained for the purpose of seeking or
performing a function or activity relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or
sickle cell anemia for the patient In question. Whenever such
diagnosis or other information, not originally received or
obtained for the purpose of obtaining or providing one of the
above program or activity functions, is subsequently used in
connection with such program or activity functions, those
original entries become a "record" and  1.460 through 1.499 of
this part thereafter apply to those entries. Segregability: These
regulations do not apply to records or information contained
therein, the disclosure of which (the circumstances surrounding
the disclosure having been considered) could not reasonably be
expected to disclose the fact that a patient has been connected
with a VA program or activity function relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or
sickle cell anemia.
 (1) The following are examples of in stances whereby records or information related to alcoholism or drug abuse are covered by
the provisions of  1.460 through 1.499 of this part:
 (i) A patient with alcoholic delirium tremens is admitted for detoxification. The patient is offered treatment in a VA alcohol
rehabilitation program which he declines.
 (ii) A patient who is diagnosed as a drug abuser applies for and is provided VA drug rehabilitation treatment.
 (iii) While undergoing treatment for an unrelated medical condition, a patient discusses with the physician his use and
abuse of alcohol. The physician offers VA alcohol rehabilitation
treatment which is declined by the patient.
 (2) The following are examples of instances whereby records or information related to alcoholism or drug abuse are not
covered by the provisions of  1.460 through 1.499 of this part:
(I) A patient with alcoholic delirium tremens is admitted for detoxification, treated and released with no counseling
or treatment for the underlying condition of alcoholism.
 (ii) While undergoing treatment for an unrelated medical
condition, a patient informs the physician of a history of drug
abuse fifteen years earlier with no ingestion of drugs since. The
history and diagnosis drug abuse is documented in the hospital
summary and no treatment is sought by the patient or offered or
provided by VA during the current period of treatment.
 (iii) While undergoing treatment for injuries sustained in an accident, a patient's medical record is documented to support the
judgment of the physician to prescribe certain alternate
medications in order to avoid possible drug interactions in view
of the patient's enrollment and treatment in a non-VA methadone
maintenance program. The patient states that continued treatment
and follow-up will be obtained from private physicians and VA
treatment for the drug abuse is not sought by the patient nor
provided or offered by the staff.
 (1)Third party payer. The term "third party payer" means a
person who pays~ or agrees to pay, for diagnosis or treatment
furnished to a patient on the basis of a contractual relationship
with the patient or a member of his or her family or on the basis
of the patient's eligibility for Federal, State, or local
governmental benefits.
 (m) Treatment The term "treatment" means the management and
care of a patient for drug abuse, alcoholism or alcohol abuse,
infection with the human immunodeficiency virus, or sickle cell
anemia, or a condition which is identified as having been caused
by one or more of these conditions, in order to reduce or
eliminate the adverse effects upon the patient. The term includes
testing for the human immunodeficiency virus or sickle cell
anemia.
 (n)Undercover agent. The term "undercover agent" means an
officer of any Federal, State, or local law enforcement agency
who becomes a patient or employee for the purpose of
investigating a suspected violation of law or who pursues that
purpose after becoming a patient or becoming employed for
other purposes.
(Authority: 38 U.S.C. 7334)

1.461  Applicability.

 (a)General (1) Restrictions on disclosure. The restrictions on
disclosure in these regulations apply to any information whether
or not recorded, which:
(i) Would Identify a patient as an alcohol or drug abuser, an individual tested for or infected with the human
Immunodeficiency virus (HIV), hereafter referred to as HIV, or an
individual with sickle cell anemia, either directly, by reference to other publicly available information, or through verification of such an identification by another person; and
 (ii) Is provided or obtained for the purpose of treating
alcohol or drug abuse, infection with the HIV or sickle call anemia, making a diagnosis for that treatment, or making a
referral for that treatment as well as for education, training,
evaluation, rehabilitation and research program or activity
purposes.
 (2) Restriction on use. The restriction on use of information to initiate or substantiate any criminal charges against a
patient or to conduct any criminal investigation of a patient
applies to any information, whether or not recorded, which is
maintained for the purpose of treating drug abuse, alcoholism or
alcohol abuse, infection with the HIV, or sickle cell anemia,
making a diagnosis for that treatment, or making a referral for
that treatment as well as for education, training, evaluation,
rehabilitation, and research pro am or activity purposes
 (b) Period covered as affecting applicability. The provisions of
1.460 through 1.499 of this part apply to records of identity,
diagnosis, prognosis, or treatment pertaining to any given
individual maintained over any period of time which,
irrespective of when it begins, does not end before March 21,
1972, in the case of diagnosis or treatment for drug abuse; or
before May 14, 1974, in the case of diagnosis or treatment for
alcoholism or alcohol abuse; or before September 1, 1973, in the
case of testing, diagnosis or treatment of sickle cell anemia; or
before May 20,1988, in the case of testing, diagnosis or
treatment for an infection with the HIV.
 (c)  Exceptions. (1) Department of Veterans Affairs and Armed
Forces. The restrictions on disclosure in  1.460 through 1.499
of this art do not apply to communications of information between
or among those components of VA who have a need for the
information in connection with their duties in the provision of
health care, adjudication of benefits, or in carrying out
administrative responsibilities related to those functions,
including personnel of the Office of the Inspector General who
are conducting audits or evaluations, or between such components
and the Armed Forces, of records Pertaining to a person relating
to a period when such person is or was subject to the Uniform
Code of Military Justice. Similarly, the restrictions on
disclosure in  1.460 through 1.499 of this part do not apply
to communications of information to the Department of Justice or
U.S. Attorneys who are providing support in litigation or possible litigation involving VA
 (2) Contractor. The restrictions on disclosure in  1.460 through 1.499 of this part do not apply to communications between
VA and a contractor of information needed by the contractor to
provide his or her services.
 (3) Crimes on VA premises or against VA personnel. The restrictions on disclosure and use in  1.480 through
1.499 of this part do not apply to communications from VA
personnel to law enforcement officers which-
 (i) Are directly related to a patient's commission of a crime on the premises of the facility or against personnel of VA or to
a threat to commit such a crime; and
 (ii) Are limited to the circumstances of the incident, including the patient status of the individual committing or
threatening to commit the crime, that individual's name and address to the extent authorized by 38 U.S.C 5701(f)(2), and that
individual's last known whereabouts.
 (4) Undercover agents and informants. (i) Except as specifically authorized by a court order granted under  1.495 of this part,
VA may not knowingly employ, or admit as a patient, any
undercover agent or informant in any VA drug abuse, alcoholism or
alcohol abuse, HIV infection, or sickle cell anemia treatment
program.
 (ii) No information obtained by an undercover agent or informant, whether or not that undercover agent or informant is
placed in a VA drug abuse, alcoholism or alcohol abuse, HIV
infection, or sickle cell anemia treatment program pursuant to an
authorizing court order, may be used to criminally investigate or
prosecute any patient unless authorized pursuant to the,
provisions of  1.493 of this part,
 (iii) The enrollment of an undercover agent or informant in a treatment unit shall not be deemed a violation of this section.
If the enrollment is solely for the purpose of enabling the
individual to obtain treatment for drug or alcohol abuse, HIV
infection, or sickle cell anemia
 (d) Applicability to recipients of information.-(1) Restriction on use of information. In the absence of a proper  1.493 court
order, the restriction on the use of any information subject to
1.460 through 1A99 of this part to initiate or substantiate any
criminal charges against a patient or to conduct any criminal
investigation of a patient applies to any person who obtain that
information from VA, regardless of the status of the person
obtaining the in formation or of whether the information was
obtained in accordance with  1.460 through 1.499 of this part.
This restriction on use bars, among other things, the
introduction of that information as evidence in a criminal
proceeding and any other use of this information to investigate
or prosecute a patient with respect to a suspected crime.
Information obtained by undercover agents or informants (see
paragraph (c) of this section) or through patient access (see
1.469 of this part) is subject to the restriction on use.
 (2)Restrictions on disclosure-- third party payers and others.
The restrictions on disclosure in  1.460 through 1.499 of this
part apply to third-party payers and persons who, pursuant to a
consent, receive patient records directly from VA and who are
notified of the restrictions on redisclosure of the records in
accordance with  1.476 of this part (Authority: 38 U.S.& 7332(e)
and 7334)

1.462 Confidentiality restrictions
 (a) General. The patient records to which  1.460 through
1.499 of this part apply may be disclosed or used only as
permitted by these regulations and may not otherwise be disclosed
or used in any civil, criminal administrative, or legislative
proceedings conducted by any Federal, State, or local authority.
Any disclosure made under these regulations must be limited to
that information which Is necessary to carry out the purpose of
the disclosure.
 (b) Unconditional compliance required. The restrictions on disclosure and use in  1.460 through 1.499 of this part apply
whether the person seeking the information already has it, has other means of obtaining it, is a law enforcement or other
official, has obtained a subpoena, or asserts any other
justification for a disclosure or use which is not permitted by
1.460 through 1.499 of this part. These provisions do not
prohibit VA from acting accordingly when there is no disclosure
of information.
 (c) Acknowledging the presence of patients: responding to requests. (1) The presence of an identified-patient in a VA
facility for the treatment or other VA program activity relating
to drug abuse, alcoholism or alcohol abuse, infection with the
HIV, or sickle cell anemia may be acknowledged only if the
patient's written consent is obtained in accordance with  1.475
of this part or if an authorizing court order is entered in
according with  1.490 through 1.499 of this part.
Acknowledgement of the presence of an identified patient in a
facility is permitted if the acknowledgement does not reveal that
the patient is being treated for or is otherwise involving a VA
program or activity concerning drug abuse, alcoholism or alcohol
abuse, infection with the HIV, or sickle cell anemia.
 (2) Any answer to a request for a disclosure of patient
records which is not permissible under  1.480 through 1.499
of this part must be made in away that will not affirmatively
reveal that an identified individual has been, or is being
diagnosed or treated for drug abuse, alcoholism or alcohol
abuse, infection with the HIV, or sickle cell anemia. These
regulations do not restrict a disclosure that an identified
individual is not and never has been a patient,
(Authority: 38 U.S.C. 7334)

1.463    Criminal penalties for violations.
Under 38 U.S.C. 7332(g), any person who violates any provision
of this statute or  1.460 through 1.499 of this part shall be
fined not more than $5,000 in the case of a first offense, and
not more than $20,000 for a subsequent offense.
(Authority: 38 U.S.C. 7332(g)).