01-3511. Privacy Act of 1974; Report of New System

AGENCY:

Department of Health and Human Services (HHS), Health Care Financing Administration (HCFA).

ACTION:

Notice of new system of records.

SUMMARY:

In accordance with the requirements of the Privacy Act of 1974, we are proposing to establish a new system of records, “Complaints Against Health Insurance Issuers and Health Plans (CAHII)” HHS/HCFA/CMSO, System No. 09-70-9005. The CAHII will enable HCFA to fulfill its statutory charge to enforce four Federal Acts, which is mandated by the Public Health Service (PHS) Act at sections 2722 and 2761 (42 U.S.C. 300gg-22 and 300gg-61). Specifically, Section 2722 requires HCFA to enforce Title I of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Mental Health Parity Act of 1996 (MHPA), the Newborns' and Mothers' Health Protection Act of 1996 (NMHPA), and the Women's Health and Cancer Rights Act of 1998 (WHCRA) with respect to non-Federal governmental plans. Section 2722 also requires HCFA to enforce these provisions with respect to health insurance issuers in the group market in States that fail to substantially do so. Section 2761 requires HCFA to enforce certain HIPAA Title I requirements with respect to health insurance issuers in the individual market in States that substantially fail to do so and fail to submit an acceptable alternative mechanism. Section 2761 also requires HCFA to enforce NMHPA and WHCRA with respect to health insurance issuers in the individual market in States that substantially fail to do so.

We have provided background information about the proposed system in the Supplementary Information section below. Although the Privacy Act requires only that the “routine use” portion of the system be published for comment, HCFA invites comments on all portions of this notice. See Effective Dates section for comment period.

Effective Dates:

HCFA filed a new system report with the Chair of the House Committee on Government Reform and Oversight, the Chair of the Senate Committee on Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on February 6, 2001. To ensure that all parties have adequate time in which to comment, the new system of records, including routine uses, will become effective 40 days from the publication of the notice, or from the date it was submitted to OMB and the Congress, whichever is later, unless HCFA receives comments that require alterations to this notice.

ADDRESSES:

The public should address comments to: Director, Division of Data Liaison and Distribution (DDLD), HCFA, Room N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9 a.m.-3 p.m., Eastern Time zone.

FOR FURTHER INFORMATION CONTACT:

Mr. Dave Mlawsky, 410-786-6851, Health Insurance Specialist, Private Health Insurance Group, HCFA, 7500 Security Boulevard, Mail Stop S3-16-26, Baltimore, Maryland 21244-1850.

SUPPLEMENTARY INFORMATION:

I. Description of the New System of Records

Statutory and Regulatory Basis for System of Records

HCFA proposes a new system of records to collect, retrieve and act on information obtained when consumers contact HCFA and inform the agency that their health insurance issuer and/or non-Federal governmental health plan allegedly has violated Title I of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Mental Health Parity Act of 1996 (MHPA), the Newborns' and Mothers' Health Protection Act of 1996 (NMHPA), and the Women's Health and Cancer Rights Act of 1998 (WHCRA). HIPAA aims to ensure the availability of health coverage for certain people who change or lose their jobs, and to small businesses, by imposing a number of requirements on health insurance issuers and certain types of group health plans. MHPA generally prohibits health insurance issuers in the large group market and certain types of health plans from setting lower annual and lifetime dollar coverage limits for mental health benefits than for medical/surgical benefits. NMHPA generally prohibits health insurers and certain types of health plans from covering post-childbirth maternity stays of less than 48 hours following a normal delivery and 96 hours following a cesarean section. WHCRA generally requires health insurance issuers and certain types of health plans that provide mastectomy benefits to also provide certain follow-up care. The portions of these Acts that apply to non-Federal governmental health plans and to health insurance issuers have been codified in the PHS Act. This system of records is necessary for HCFA to fulfill its statutory charge to enforce these four Federal Acts, which is mandated by the PHS Act at sections 2722 and 2761 (42 U.S.C. 300gg-22 and 300gg-61). Specifically, section 2722 requires HCFA to enforce Title I of HIPAA, MHPA, NMHPA and WHCRA with respect to non-Federal governmental plans. Section 2722 also requires HCFA to enforce these provisions with respect to health insurance issuers in the group market in States that fail to substantially do so. Section 2761 requires HCFA to enforce certain HIPAA requirements with respect to health insurance issuers in the individual market in States that substantially fail to do so and fail to submit an acceptable alternative mechanism. Section 2761 also requires HCFA to enforce NMHPA and WHCRA with respect to health insurance issuers in the individual market in States that substantially fail to do so.

II. Collection and Maintenance of Data in the System

Scope of the Data Collected

The collected information will include a consumer's name, address, phone number, the name and address of their health plan or health insurance issuer, their plan ID number or social security number, the nature of their complaint/inquiry against their health plan or issuer, and any medical and other additional information that is necessary for HCFA to help resolve the consumer's complaint.

Agency Policies, Procedures, and Restrictions on the Routine Use

The Privacy Act permits us to disclose information without an individual's consent if the information is to be used for a purpose, which is compatible with the purpose(s) for which the information was collected. Any such disclosure of data is known as a “routine use.” The government will only release information contained in this system of records as provided for under Section III “Proposed Routine Use Disclosures of Data in the System”.

We will only disclose the minimum personal data necessary to achieve the purpose of the system of records. HCFA has the following policies and procedures concerning disclosures of information, which will be maintained in the system. Disclosure of information from the system of records will be approved only for the minimum information necessary to accomplish the purpose of the disclosure after HCFA:

(a) Determines that the use or disclosure is consistent with the reason that the data is being collected; i.e., assisting consumers to resolve their complaints and/or inquiries regarding their rights under Title I of HIPAA, MHPA, NMHPA and/or WHCRA,

(b) Determines:

(1) That the purpose for which the disclosure is to be made can only be accomplished if the record is provided in individually identifiable form;

(2) That the purpose for which the disclosure is to be made is of sufficient importance to warrant the effect and/or risk on the privacy of the individual that additional exposure of the record might bring; and

(3) That there is a strong probability that the proposed use of the data would in fact accomplish the stated purpose(s).

(c) Determines that the data are valid and reliable.

III. Proposed Routine Use Disclosures of Data in the System

The routine use disclosures in this system may occur only to the following categories of entities (i.e., the entities, which can get identifiable data only if we apply the policies and procedures in Section II. B. above). Disclosures may be made:

1. To agency contractors, or consultants who have been engaged by the agency to assist in accomplishment of an HCFA function relating to the purposes for this system of records and who need to have access to the records in order to assist the HCFA.

We contemplate disclosing information under this routine use only in situations in which HCFA may enter a contractual or similar agreement with a third party to assist in accomplishing HCFA functions relating to purposes for this system of records. HCFA occasionally contracts out certain of its functions when this would contribute to effective and efficient operations. HCFA must be able to give a contractor whatever information is necessary for the contractor to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor from using or disclosing the information for any purpose other than that described in the contract and to return or destroy all information at the completion of the contract.

2. To a Member of Congress or to a congressional staff member in response to an inquiry of the Congressional Office made at the written request of the constituent about whom the record is maintained.

Beneficiaries sometimes request the help of a member of Congress in resolving some issue relating to a matter before HCFA. The member of Congress then writes HCFA, and HCFA must be able to give sufficient information to be responsive to the inquiry.

3. To the Department of Justice (DOJ), court or adjudicatory body when:

(a) The agency or any component thereof; or

(b) Any employee of the agency in his or her official capacity; or

(c) Any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee; or

(d) The United States Government;

Is a party to litigation or has an interest in such litigation, and by careful review, HCFA determines that the records are both relevant and necessary to the litigation.

Whenever HCFA is involved in litigation, or occasionally when another party is involved in litigation and HCFA's policies or operations could be affected by the outcome of the litigation, HCFA would be able to disclose information to the DOJ, court or adjudicatory body involved. A determination would be made in each instance that, under the circumstances involved, the purposes served by the use of the information in the particular litigation is compatible with a purpose for which HCFA collects the information.

4. To a health insurance issuer and/or health plan, who has been named in a complaint and is believed to be potentially in violation of relevant portions of the PHS Act.

When individuals file complaints or inquiries asking HCFA to clarify or enforce their rights under Title I of HIPAA, MHPA, NMHPA and/or WHCRA, HCFA often must disclose information maintained in this system of records to the individual's health insurance issuer or health plan in order for HCFA to satisfy its statutory charge to enforce these Federal Acts with respect to non-Federal governmental health plans in all States and health insurance issuers in some States.

5. To another Federal or State agency:

(a) To refer a complaint or inquiry with respect to Title I of HIPAA, MHPA, NMHPA and WHCRA or

(b) To enable such agency to administer a Federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds.

HCFA shares enforcement responsibilities with the U.S. Department of Labor, the U.S. Department of Treasury and State regulatory bodies with respect to Title I of HIPAA, MHPA, NMHPA and WHCRA. HCFA's enforcement responsibilities are discussed in the “Description of the New System of Records” section above. The Department of Labor enforces Title I of HIPAA, MHPA, NMHPA and WHCRA with respect to private group health plans. The Department of Treasury may levy excise taxes against private group health plans that do not comply with these Acts, except for WHCRA. In States that are substantially enforcing Title I of HIPAA, MHPA, NMHPA and WHCRA, the appropriate State agency enforces these provisions with respect to health insurance issuers. Occasionally, HCFA will receive an inquiry or complaint related to one of these four Acts in situations where it is within Labor's or Treasury's or a State's, and not HCFA's, jurisdiction to resolve. In such cases, HCFA must disclose information from the system of records to the appropriate agency so they can perform their enforcement function.

6. To third party contacts when the party to be contacted has, or is expected to have, information relating to the individual's complaint against a health insurance issuer and/or health plan, when:

(a) The individual is unable to provide the information being sought. An individual is considered unable to provide certain types of information when:

(1) He or she is incapable or of questionable mental capability;

(2) He or she cannot read or write;

(3) He or she has a hearing impairment; and is contacting HCFA by telephone through a telecommunications relay system operator;

(4) He or she cannot afford the cost of obtaining the information;

(5) A language barrier exists; or

(6) The custodian of the information will not; as a matter of policy, provide it to the individual; or

(b) The data are needed to establish the validity of evidence or to verify the accuracy of information presented by the individual concerning his or her complaint against a health insurance issuer and/or health plan; or HCFA is reviewing the information as a result of suspected violation of the PHS Act.

Although most of the information that will be maintained in this system will already be in HCFA's files, HCFA will occasionally need to obtain additional information from other sources. When an individual has difficulty communicating with HCFA or obtaining needed information because of a physical handicap, a language barrier, or other reason, HCFA helps the individual as needed. There can also be other situations in which HCFA requests information from a source other than the subject individual. To request needed information from such other sources, HCFA must disclose minimal information about the individual to them, for example, information identifying the individual and the fact that the subject individual is making a complaint against an health insurance or health plan.

IV. Safeguards

A. Authorized users: Personnel having access to the system have been trained in Privacy Act requirements. Records are used in a designated work area and system location is attended at all times during working hours.

• To ensure security of the data, the proper level of class user is assigned for each individual user level. This prevents unauthorized users from accessing and modifying critical data.

B. Physical Safeguards: All server sites have implemented the following minimum requirements to assist in reducing the exposure of computer equipment and thus achieve an optimum level of protection and security for the CAHII system:

Access to all servers is controlled, with access limited to only those support personnel with a demonstrated need for access. Servers are to be kept in a locked room accessible only by specified management and system support personnel. Each server requires a specific log-on process. All entrance doors are identified and marked. A log is kept of all personnel who were issued a security card, key and/or combination, which grants access to the room housing the server, and all visitors are escorted while in this room. All servers are housed in an area where appropriate environmental security controls are implemented, which include measures implemented to mitigate damage to Automated Information Systems (AIS) resources caused by fire, electricity, water and inadequate climate controls.

Protection applied to the workstations, servers and databases include:

• User Log-on—Authentication is performed by the Primary Domain Controller/Backup Domain Controller of the log-on domain.
• Workstation Names—Workstation naming conventions may be defined and implemented at the agency level.
• Hours of Operation—May be restricted by Windows NT. When activated all applicable processes will automatically shut down at a specific time and not be permitted to resume until the predetermined time. The appropriate hours of operation are determined and implemented at the agency level.
• Inactivity Lockout—Access to the NT workstation is automatically locked after a specified period of inactivity.
• Warnings—Legal notices and security warnings display on all servers and workstations.
• Remote Access Security—Windows NT Remote Access Service (RAS) security handles resource access control. Access to NT resources is controlled for remote users in the same manner as local users, by utilizing Windows NT file and sharing permissions. Dial-in access can be granted or restricted on a user-by-user basis through the Windows NT RAS administration tool.

There are several levels of security found in the CAHII system. Windows NT provides much of the overall system security. The Windows NT security model is designed to meet the C2-level criteria as defined by the U.S. Department of Defense's Trusted Computer System Evaluation Criteria document (DoD 5200.28-STD, December 1985). Netscape Enterprise Server is the security mechanism for all CAHII transmission connections to the system. As a result, Netscape controls all CAHII information access requests. Anti-virus software is applied at both the workstation and NT server levels.

Access to different areas on the Windows NT server are maintained through the use of file, directory and share level permissions. These different levels of access control provide security that is managed at the user and group level within the NT domain. The file and directory level access controls rely on the presence of an NT File System (NTFS) hard drive partition. This provides the most robust security and is tied directly to the file system. Windows NT security is applied at both the workstation and NT server levels.

C. Procedural Safeguards: All automated systems must comply with Federal laws, guidance, and policies for information systems security. These include, but are not limited to: the Privacy Act of 1974; the Computer Security Act of 1987; OMB Circular A-130, revised; Information Resource Management (IRM) Circular #10; HHS Automated Information Systems Security Program; the HCFA Information Systems Security Policy and Program Handbook; and other HCFA systems security policies. Each automated information system should ensure a level of security commensurate with the level of sensitivity of the data, risk, and magnitude of the harm that may result from the loss, misuse, disclosure, or modification of the information contained in the system.

V. Effect of the Proposed System of Records on Individual Rights

HCFA proposes to establish this system in accordance with the principles and requirements of the Privacy Act and will collect, use, and disseminate information only as prescribed therein. Data in this system will be subject to the authorized releases in accordance with the routine uses identified in this system of records.

HCFA will monitor the collection and reporting of data. HCFA will collect only that information necessary to perform the system's functions. In addition, HCFA will make disclosure from the proposed system only with consent of the subject individual or his/her legal representative, in accordance with an applicable exception provision of the Privacy Act, or in accordance with the routine uses enumerated in Section III.

HCFA, therefore, does not anticipate an unfavorable effect on individual privacy as a result of maintaining this system of records.

Dated: February 6, 2001.

Michael McMullan,

Acting Deputy Administrator, Health Care Financing Administration.

No. 09-70-9005

SYSTEM NAME:

Complaints Against Health Insurance Issuers and Health Plans (CAHII), HHS/HCFA/CMSO.

SECURITY CLASSIFICATION:

Level 3, Privacy Act Sensitive Data.

SYSTEM LOCATION:

7500 Security Boulevard, South Building, Third Floor, Baltimore, Maryland 21244-1850. Portions of the system of records will be maintained at various HCFA regional offices.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

Consumers who contact HCFA with complaints that their health insurance issuer or health plan is violating Title I of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Mental Health Parity Act of 1996 (MHPA), the Newborns' and Mothers' Health Protection Act of 1996 (NMHPA), and the Women's Health and Cancer Rights Act of 1998 (WHCRA); as well as consumers who contact HCFA with inquiries about the consumer protections offered by one or more of these Acts.

CATEGORIES OF RECORDS IN THE SYSTEM:

This system will contain the consumer's name, social security number or health plan ID number, address, phone number, the name and address of their health insurance issuer or health plan, the nature of their complaint or inquiry, and any relevant medical or other information necessary to resolve their complaint against their health insurance issuer or health plan.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

Section 2722 of the PHS Act (42 U.S.C. 300gg-22) and section 2761 (42 U.S.C. section 300gg-61).

PURPOSE(S):

The primary purpose of the system of records is to enable HCFA to collect, retrieve and act on information obtained when consumers contact HCFA and inform the agency that their health insurance issuer and/or health plan has violated Title I of HIPAA, MHPA, NMHPA, or WHCRA. Consumers will direct these complaints to HCFA's central office, and to HCFA's regional offices. Relevant information about each complaint is documented on paper at each HCFA location that receives complaints. The system of records will be maintained at several locations. HCFA will use information retrieved from this system of records to enforce these four Acts by assisting individuals in securing their rights under them. HCFA also will use information retrieved from this system of records to identify any patterns of violations that will help HCFA determine whether targeted outreach and education efforts are needed.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

The Privacy Act permits us to disclose information without an individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such compatible use of data is known as a “routine use.” The proposed routine uses in this system meet the compatibility requirement of the Privacy Act. We are proposing to establish the following routine use disclosures of information, which will be maintained in the system. These routine uses are discussed in detail in the attached Preamble.

1. To agency contractors, or consultants who have been engaged by the agency to assist in accomplishment of an HCFA function relating to the purposes for this system of records and who need to have access to the records in order to assist the HCFA.

2. To a Member of Congress or to a congressional staff member in response to an inquiry of the Congressional Office made at the written request of the constituent about whom the record is maintained.

3. To the Department of Justice (DOJ), court or adjudicatory body when:

(a) The agency or any component thereof; or

(b) Any employee of the agency in his or her official capacity; or

(c) Any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee; or

(d) the United States Government;

Is a party to litigation or has an interest in such litigation, and by careful review, HCFA determines that the records are both relevant and necessary to the litigation.

4. To a health insurance issuer and/or health plan, that has been named in a complaint and is believed to be in violation of relevant portions of the PHS Act.

5. To another Federal or State agency:

(a) To refer a complaint or inquiry with respect to Title I of HIPAA, MHPA, NMHPA or WHCRA or

(b) To enable such agency to administer a Federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds.

6. To third party contacts when the party to be contacted has, or is expected to have, information relating to the individual's complaint against a health insurance issuer and/or health plan, when:

(a) The individual is unable to provide the information being sought. An individual is considered unable to provide certain types of information when:

(1) He or she is incapable or of questionable mental capability;

(2) He or she cannot read or write;

(3) He or she has a hearing impairment, and is contacting HCFA by telephone through a telecommunications relay system operator;

(4) He or she cannot afford the cost of obtaining the information;

(5) A language barrier exists; or

(6) The custodian of the information will not, as a matter of policy, provide it to the individual; or

(b) The data are needed to establish the validity of evidence or to verify the accuracy of information presented by the individual concerning his or her complaint against a health insurance issuer and/or health plan; or HCFA is reviewing the information as a result of suspected violation of the PHS Act.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM:

 

STORAGE:

Information is maintained on paper.

RETRIEVABILITY:

The records are retrieved by name and social security number.

SAFEGUARDS:

HCFA has safeguards for authorized users and monitors such users to ensure against excessive or unauthorized use. Personnel having access to the system have been trained in the Privacy Act and systems security requirements.

In addition, HCFA has physical safeguards in place to reduce the exposure of computer equipment and thus achieve an optimum level of protection and security for the CAHII system. Safeguards have been established in accordance with HHS standards and National Institute of Standards and Technology guidelines; e.g., limiting access to authorized personnel. System securities are established in accordance with HHS, Information Resource Management (IRM) Circular #10, Automated Information Systems Security Program; HCFA Automated Information Systems (AIS) Guide, Systems Securities Policies; and OMB Circular No. A-130 (revised) Appendix III.

RETENTION AND DISPOSAL:

HCFA will retain CAHII data for a total period of seven (7) years after resolution of the inquiry/complaint.

SYSTEM MANAGERS AND ADDRESS:

Director, Private Health Insurance Group, HCFA, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.

NOTIFICATION PROCEDURE:

For purpose of access, the subject individual should write to the system manager who will require the system name, the subject individual's name, social security number (SSN) (furnishing the SSN is voluntary, but it may make searching for a record easier and prevent delay), address, date of birth, and sex.

RECORD ACCESS PROCEDURE:

For purpose of access, use the same procedures outlined in Notification Procedures above. Requestors should also reasonably specify the record contents being sought. (These procedures are in accordance with Department regulation 45 CFR 5b.5(a)(2).)

CONTESTING RECORD PROCEDURES:

The subject individual should contact the system manager named above, and reasonably identify the record and specify the information to be contested. State the corrective action sought and the reasons for the correction with supporting justification. (These procedures are in accordance with Department regulation 45 CFR 5b.7.)

RECORD SOURCE CATEGORIES:

Sources of information contained in this records system include data collected from the individuals themselves, and information collected from their health insurance issuer or health plan.

SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS OF THE ACT:

None.