U.S. Code » Title 38 » Part PART IV— GENERAL ADMINISTRATIVE PROVISIONS › Chapter CHAPTER 57— RECORDS AND INVESTIGATIONS › Subchapter SUBCHAPTER I— RECORDS

38 U.S.C. § 5705

Confidentiality of medical quality-assurance records

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(a) Records and documents created by the Department as part of a medical quality-assurance program (other than reports submitted pursuant to section 7311(g) 11 See References in Text note below. of this title) are confidential and privileged and may not be disclosed to any person or entity except as provided in subsection (b) of this section.(b)(1) Subject to paragraph (2) of this subsection, a record or document described in subsection (a) of this section shall, upon request, be disclosed as follows:(A) To a Federal agency or private organization, if such record or document is needed by such agency or organization to perform licensing or accreditation functions related to Department health-care facilities or to perform monitoring, required by statute, of Department health-care facilities.(B) To a Federal executive agency or provider of health-care services, if such record or document is required by such agency or provider for participation by the Department in a health-care program with such agency or provider.(C) To a criminal or civil law enforcement governmental agency or instrumentality charged under applicable law with the protection of the public health or safety, if a qualified representative of such agency or instrumentality makes a written request that such record or document be provided for a purpose authorized by law.(D) To health-care personnel, to the extent necessary to meet a medical emergency affecting the health or safety of any individual.(2) The name of and other identifying information regarding any individual patient or employee of the Department, or any other individual associated with the Department for purposes of a medical quality-assurance program, contained in a record or document described in subsection (a) of this section shall be deleted from any record or document before any disclosure made under this subsection if disclosure of such name and identifying information would constitute a clearly unwarranted invasion of personal privacy.(3) No person or entity to whom a record or document has been disclosed under this subsection shall make further disclosure of such record or document except for a purpose provided in this subsection.(4) Nothing in this section shall be construed as authority to withhold any record or document from a committee of either House of Congress or any joint committee of Congress, if such record or document pertains to any matter within the jurisdiction of such committee or joint committee.(5) Nothing in this section shall be construed as limiting the use of records and documents described in subsection (a) of this section within the Department (including contractors and consultants of the Department).(6) Nothing in this section shall be construed as authorizing or requiring withholding from any person or entity the disclosure of statistical information regarding Department health-care programs (including such information as aggregate morbidity and mortality rates associated with specific activities at individual Department health-care facilities) that does not implicitly or explicitly identify individual patients or employees of the Department, or individuals who participated in the conduct of a medical quality-assurance review.(c) For the purpose of this section, the term “medical quality-assurance program” means—(1) with respect to any activity carried out before October 7, 1980, a Department systematic health-care review activity carried out by or for the Department for the purpose of improving the quality of medical care or improving the utilization of health-care resources in Department health-care facilities; and(2) with respect to any activity carried out on or after October 7, 1980, a Department systematic health-care review activity designated by the Secretary to be carried out by or for the Department for either such purpose.(d)(1) The Secretary shall prescribe regulations to carry out this section. In prescribing such regulations, the Secretary shall specify those activities carried out before October 7, 1980, which the Secretary determines meet the definition of medical quality-assurance program in subsection (c)(1) of this section and those activities which the Secretary has designated under subsection (c)(2) of this section. The Secretary shall, to the extent appropriate, incorporate into such regulations the provisions of the administrative guidelines and procedures governing such programs in existence on October 7, 1980.(2) An activity may not be considered as having been designated as a medical quality-assurance program for the purposes of subsection (c)(2) of this section unless the designation has been specified in such regulations.(e) Any person who, knowing that a document or record is a document or record described in subsection (a) of this section, willfully discloses such record or document except as provided for in subsection (b) of this section shall be fined not more than $5,000 in the case of a first offense and not more than $20,000 in the case of a subsequent offense.(Added Pub. L. 96–385, title V, § 505(a), Oct. 7, 1980, 94 Stat. 1535, § 3305; amended Pub. L. 99–166, title II, § 201, Dec. 3, 1985, 99 Stat. 949; renumbered § 5705 and amended Pub. L. 102–40, title IV, §§ 402(b)(1), 403(b)(2), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, § 14(d)(4), June 13, 1991, 105 Stat. 285; Pub. L. 102–83, § 4(a)(2)(F), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405.)Editorial NotesReferences in Text

Section 7311(g) of this title, referred to in subsec. (a), was repealed by Pub. L. 103–446, title XII, § 1201(g)(5), Nov. 2, 1994, 108 Stat. 4687.

Amendments

1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3305 of this title as this section.

Subsec. (a). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Pub. L. 102–40, § 403(b)(2), substituted “section 7311(g)” for “section 4152(b)”.

Subsec. (b)(1)(A), (B). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” wherever appearing.

Subsec. (b)(2). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Pub. L. 102–83, § 4(a)(2)(F)(i), substituted “patient or employee of the Department” for “Veterans’ Administration patient or employee”.

Subsec. (b)(5). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” in two places.

Subsec. (b)(6). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” in two places.

Pub. L. 102–83, § 4(a)(2)(F)(ii), substituted “patients or employees of the Department,” for “Veterans’ Administration patients or employees”.

Subsec. (c)(1). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” wherever appearing.

Pub. L. 102–54, § 14(d)(4)(A), amended subsec. (c)(1) as in effect immediately before the enactment of Pub. L. 102–40 by substituting “October 7, 1980” for “the date of the enactment of this section”.

Subsec. (c)(2). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.

Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” in two places.

Pub. L. 102–54, § 14(d)(4)(A), amended subsec. (c)(2) as in effect immediately before the enactment of Pub. L. 102–40 by substituting “October 7, 1980” for “the date of the enactment of this section”.

Subsec. (d)(1). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” wherever appearing.

Pub. L. 102–54, § 14(d)(4)(B)(i)–(iii), amended subsec. (d)(1) as in effect immediately before the enactment of Pub. L. 102–40 by substituting “The” for “Not later than 180 days after the date of the enactment of this section, the” in first sentence, substituting “October 7, 1980,” for “such enactment date” in second sentence, and striking out “existing” after “provisions of the” and inserting “in existence on October 7, 1980” after “such programs” in last sentence.

Subsec. (d)(2). Pub. L. 102–54, § 14(d)(4)(B)(iv), amended subsec. (d)(2) as in effect immediately before the enactment of Pub. L. 102–40 by substituting “An activity may not be considered” for “After the date on which such regulations are first prescribed, no activity shall be considered”.

1985—Subsec. (a). Pub. L. 99–166, § 201(1), inserted “(other than reports submitted pursuant to section 4152(b) of this title)” after “program”.

Subsec. (b)(6). Pub. L. 99–166, § 201(2), added par. (6).

Statutory Notes and Related SubsidiariesEffective Date

Section effective Oct. 7, 1980, see section 601(d) of Pub. L. 96–385, set out as an Effective Date of 1980 Amendment note under section 1114 of this title.

Notes of Decisions
Cited in 15 cases (5 in the last 5 years), 1998–2024 · leading case: Bethel v. United States, 242 F.R.D. 580 (D. Colo. 2007).
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Bethel v. United States, 242 F.R.D. 580 (D. Colo. 2007). · cites it 20× “Peer Review documents have statutory protection as they contain information regarding an activity carried out by or for the Department for the purpose of improving the utilization of health resources in Department health care facilities as contained under 38 U.S.C. § 5705 and…”
Werner G. Hood v. Eric K. Shinseki, 23 Vet. App. 295 (Vet. App. 2009). · cites it 8× “38 U.S.C. § 5705 (c)(2). With some exceptions, records and documents created by VA as part of a quality assurance program “are confidential and privileged and may not be disclosed to any person or entity.”
Glover Norvell v. James B. Peake, 22 Vet. App. 194 (Vet. App. 2008). · cites it 3× “The Secretary also argues that he did not have a duty to obtain quality assurance records because they are confidential and privileged under 38 U.S.C. § 5705 (a). He argues that VA’s duty to assist under section 5103A is preempted by the confidentiality requirements of section…”
Jackson v. United States, 708 F.3d 23 (1st Cir. 2013). · cites it 5× “The government opposed the motion, contending that the SSQIC Comments were protected under 38 U.S.C. § 5705 and 38 C.F.R. § 17.501 as documents produced in a focused review.”
Syposs v. United States, 179 F.R.D. 406 (W.D.N.Y. 1998). “For example, in 38 U.S.C. § 5705 , Congress declared certain medical quality assurance records to be privileged in cases involving hospitals operated by the Veterans Administration/Department of Veterans Affairs.”
Virmani v. Novant Health Inc., 259 F.3d 284 (4th Cir. 2001). “§ 1102 (a) (West 1998) (providing that “[m]edical quality assurance records created by or for the Department of Defense as part of a medical quality assurance program are confidential and privileged”); 38 U.S.C.A. § 5705 (a) (West 1991) (providing that “[r]ecords and documents…”
Sevilla v. United States, 852 F. Supp. 2d 1057 (N.D. Ill. 2012). “By regulation, documents, such as "tort claims peer reviews," 38 C.F.R. § 17.”
Zander v. Craig Hosp., 267 F.R.D. 653 (D. Colo. 2010). “erans Administration quality assurance privilege in connection with an investigation of medical services provided by the VA attaches to protect documents arising from a “root cause analysis” only when the prerequisites established by federal regulations are met, including that…”
Claasen v. Brown, 33 F. Supp. 2d 511 (N.D.W. Va. 1998). · cites it 8× “7 At the time of this action, Title 38 U.S.C. § 5705 protected from disclosure certain records and reports generated as part of a medical QAP.”
Leise v. United States (D. Neb. 2024). · cites it 12× “On February 1, 2023, the United States objected that the RCA was privileged as a medical-quality assurance document under 38 U.S.C. § 5705 ; the United States took the position that the VA’s OIG Response may also be privileged, but it needed more time to make that determination.”
Velosky v. United States (W.D. Ark. 2022). · cites it 4× “Gibbs, Defendant—after significant delay—informed Plaintiff that it was “withholding Root Cause Analysis, Case Number TF3042, Station 564, Fayetteville, AR on the basis that it is confidential and privileged pursuant to 38 U.S.C. § 5705 .” (Doc. 77, p. 3). Under 38 U.”
Anthony Daquino v. Dep't of Vets. Affairs (MSPB 2023). · cites it 2× “¶42 The appellant argues that the administrative judge erred in denying his motion to compel documents and testimony relating to the VIS N investigation.”
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