E6-3009. Departmental Appeals Board; Privacy Act of 1974; System of Records

AGENCY:

Departmental Appeals Board (DAB), Office of the Secretary, Department of Health and Human Services (HHS).

ACTION:

Notification of Altered Privacy Act System Notice.

SUMMARY:

On May 19, 1993, in accordance with the requirements of the Privacy Act, the Departmental Appeals Board (DAB) published a notice of a system of records entitled “Departmental Appeals Board Case and Appeal Records, HHS/OS/DAB No. 09-90-0049.” 58 FR 29228, May 19, 1993. The DAB has reviewed its May 19, 1993 Privacy Act notice and now proposes to revise that notice. Revisions include the following: Adding routine uses; updating the DAB's address; clarifying its policies and practices for storing, retrieving, accessing, retaining and disposing of records in the system; and making minor editorial or formatting changes. The revised notice, like the original, covers records maintained by the DAB's Appellate Division, Civil Remedies Division, and Alternative Dispute Resolution Division. The DAB's Medicare Appeals Council (MAC) will issue a separate Privacy Act notice describing the system of records used by the MAC and its supporting component, the Medicare Operations Division, to docket, track, manage, and decide appeals and other matters before the MAC.

DATES:

The DAB sent a report of the altered system to Congress and the Office of Management and Budget (OMB) on January 19, 2006. The altered system will be effective 40 days after the submittal of the report of new system to OMB or 30 days after publication of the notice, whichever is later, unless the DAB receives comments on the routine uses during that period.

Submit comments on or before April 5, 2006. Comments may be viewed on or before April 5, 2006.

ADDRESSES:

Please mail written comments to: Departmental Appeals Board, MS 6127, 330 Independence Avenue, SW., Cohen Building, Room G-644, Washington, DC 20201 (Attention: Maxine Winerman or Ken Veilleux). The DAB will not accept comments by facsimile (fax) transmission.

Comments received will be available for public inspection, by appointment, from 9 a.m. to 5 p.m. at the DAB's offices, which are located at 800 North Capitol Street, NW., 6th Floor, Washington, DC. To schedule an appointment, please call [phone].

FOR FURTHER INFORMATION CONTACT:

Maxine Winerman (DAB), 202-565-0147, or Ken Veilleux (DAB), [phone].

SUPPLEMENTARY INFORMATION:

The system of records described in the DAB's May 19, 1993 Privacy Act notice is used by DAB staff to docket, track, manage, and decide or mediate appeals and other matters involving individuals who are parties in those matters. This system includes information on all individuals who are parties in matters before the DAB, including their names and addresses and any other information about those individuals that is presented by a party or intervener to enable the DAB to decide, decline to decide, mediate, or conclude a matter. The amount of information recorded on each individual will be only that which is necessary to resolve the matter that is before the DAB. In addition, this system contains some information that is about entities, rather than individuals, and that information is not covered by the Privacy Act.

The records in this system are maintained in a secure manner compatible with their content and use. The System Managers control access to the information in the records. Only authorized users whose official duties require the use of such information will have regular access to the records. The records (whether paper or computer-based) are maintained in accordance with the standards of Chapter 45-13 of the HHS General Administration Manual: “Safeguarding Records Contained in the System of Records.”

The Privacy Act permits the DAB to disclose information or records pertaining to an individual without that 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 disclosure is known as a “routine use.” This revised notice identifies eight routine uses for the DAB's system of records. The DAB expects that its routine use disclosures will not result in any unwarranted adverse effects on personal privacy.

Mediation-related records are maintained in conformity with the confidentiality provisions of the Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 574, and with guidelines contained in the Federal Register document “Confidentiality in Federal Alternative Dispute Resolution Programs,” 65 FR 83085, December 29, 2000. Disclosure of such records is made only in conformity with those provisions and guidelines. That is, all dispute resolution communications would be confidential unless specifically subject to disclosure under one of the public policy type exceptions identified in sections 574(a) or 574(b) of the ADRA.

Dated: January 13, 2006.

Cecilia Sparks Ford,

Chair, Departmental Appeals Board.

HHS/OS/DAB 09-90-0049

System Name:

Departmental Appeals Board Case and Appeal Records, HHS/OS/DAB.

Security Classification:

None.

System Location:

6th Floor, 800 North Capitol Street, NW., Washington, DC 20002.

Categories of Individuals Covered by the System:

Individuals who are parties in matters before the Departmental Appeals Board (DAB), or who are requesting review or consideration of a matter by the DAB.

Categories of Records in the System:

The DAB's system of records contains correspondence, pleadings, legal briefs, documentary evidence, and other paper or computer-stored records relevant to the issues being adjudicated, mediated, or considered by the DAB or its personnel. This system also contains some information that is about entities, rather than individuals, and that information is not covered by the Privacy Act.

Authority for Maintenance of the System:

The DAB provides ALJ hearings and/or Board reviews in cases in which an individual has a right to a hearing pursuant to the following statutory authorities and/or the regulations implementing them:

• 42 U.S.C. 1320a-7a(c),
• 42 U.S.C. 1320a-8(b),
• 42 U.S.C. 1395cc(h) and (j),
• 42 U.S.C. 1395ff(f),
• 31 U.S.C. 3801 et seq.,
• 5 U.S.C. 5514(a)(2),
• 42 U.S.C. 216, 241, and 289b, and
• Any other authorities that are cited when new cases are added to the DAB's jurisdiction.

The DAB also mediates disputes pursuant to the federal Administrative Dispute Resolution Act, 5 U.S.C. 571-584.

The system of records has been created for the purpose of tracking, adjudicating, and mediating matters that come before the DAB. Information about the types of matters that come before the DAB can be obtained by contacting the DAB at 202-565-0200 or by visiting the DAB Web site at the following Internet addresses: http://www.hhs.gov/​dab/​civil/​overview.html, http://www.hhs.gov/​dab/​appellate,, and http://www.hhs.gov/​dab/​adr.

Purpose:

The system of records is used to docket, track, adjudicate, mediate, or conclude matters before the DAB and, in those matters before the Appellate and Civil Remedies Divisions, to develop a body of case law that can guide persons and agency components in the future with respect to matters that are before or might come before the DAB.

Routine Uses of Records Maintained in the System, Including Categories of Users and the Purposes of Such Uses:

The following are the routine uses of records or information contained in the DAB's system of records:

(1) To apprise the public of the basis on which the DAB makes its decisions, the DAB may disclose records or parts of records not subject to a Freedom of Information Act exemption to persons who request the records or who attend DAB hearings.

(2) The DAB will disclose the status of a pending or past matter, and similar docket information, to any person making an inquiry about such information in order to apprise the public of the status and progress of matters before the DAB.

(3) The DAB may make disclosures to the Department of Justice, to a court or other tribunal, or to another party before such tribunal, when (a) HHS, or any component thereof; or (b) any HHS employee in his or her official capacity; or (c) any HHS employee in his or her individual capacity where the Justice Department (or HHS, where it is authorized to do so) has agreed to represent the employee; or (d) the United States or any agency thereof where HHS determines that the litigation is likely to affect HHS or any of its components, is a party to the litigation or has an interest in such litigation, and HHS determines that the use of such records by the Department of Justice, the tribunal, or the other party is relevant and necessary to the litigation and would help in the effective representation of the governmental party, provided, however, that in each case, HHS determines that such disclosure is compatible with the purpose for which the records were collected.

(4) The DAB may make disclosures to a Congressional office in response to an inquiry made by that office at the request of an individual who is a party in a matter before the DAB.

(5) The DAB may make disclosures to the public and to commercial reporters of DAB decisions and rulings for the purpose of distributing and publishing the decisions and rulings.

(6) The DAB may make disclosures to third parties, including public and private organizations, in order to obtain from them (by subpoena or other means) information relevant or necessary to the proceedings before the DAB.

(7) The DAB may make disclosures to HHS contractors who have been engaged by the agency to assist in the performance of a service related to this system of records and who have a need to access the records in order to perform the activity.

(8) The DAB may make disclosures to student volunteers, individuals working under a personal services contract, and other individuals performing functions for HHS but technically not having the status of agency employees, if they need access to the records to perform their assigned agency functions.

Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System:

Storage

Records in the system are maintained in file folders and binders, and on password-protected computers or computer servers.

Retrievability

Records in the system are retrieved by the name of the non-government party or by docket or decision number.

Safeguards

Access to and use of records in the system are limited to those persons (including DAB contractors) whose official duties require such access. Paper records are maintained in file cabinets, offices, and other secure areas to which only authorized persons have access; information or records stored on computers may be retrieved through the use of passwords known only to authorized personnel. Physical access to the DAB's offices and computers is controlled by security personnel and by a computerized card entry system, and is limited to DAB employees and to non-DAB persons whose access is authorized and whose activities are supervised or monitored by the System Managers or other DAB employees. DAB employees who maintain records in the system are instructed to grant access to these records only to persons whose official duties require such access. In addition, DAB employees are required and instructed to adhere to the provisions of the Privacy Act, the HHS Privacy Act Regulations, and security guidelines set forth in Chapter 45-13 of the HHS General Administration Manual. Contractors who assist the DAB in maintaining the records are instructed to make no disclosure of the records except as authorized by the System Managers and permitted by the Privacy Act. Privacy Act language is included in contracts related to this system.

Retention and Disposal

Once a matter is closed, the DAB's paper records for that matter are stored in DAB files for a period of time not exceeding seven years. After that time, the files are turned over to the Office of the Secretary, HHS Records Management Officer. The records are then transferred to the Washington National Records Center, Washington, DC 20409, where they are kept for an additional 20 years, after which time they may be destroyed.

Electronic files that are part of the DAB's system of records (including case tracking information) are maintained on a secure server that can be accessed only by authorized personnel.

System Managers and Addresses

Appellate Division: Chief, Appellate Division, Departmental Appeals Board, MS 6127, Room G-644, Cohen Building, 330 Independence Avenue, SW., Washington, DC 20201.

Civil Remedies Division: Chief, Civil Remedies Division, Departmental Appeals Board, MS 6132, Room G-644, Cohen Building, 330 Independence Avenue, SW., Washington, DC 20201.

Alternative Dispute Resolution Division: Chief, Alternative Dispute Resolution Division, Departmental Appeals Board, MS 6132, Room G-644, Cohen Building, 330 Independence Avenue, SW., Washington, DC 20201.

Notification Procedure

Individuals who wish to inquire about whether the DAB's system of records contains information about them should contact the appropriate System Manager indicated above. When making such an inquiry, it is necessary to provide the following information regarding the individual:

(1) Full name;

(2) Date of birth;

(3) Kind of action taken by the agency;

(4) Date and location of the filing of the case, appeal or other matter before the DAB; and

(5) If appropriate, the DAB docket or decision number.

Record Access Procedure

Same as notification procedures. Requesters should also reasonably specify the record contents being sought.

Contesting Record Procedure

Contact the appropriate System Manager at the address specified under notification procedures, reasonably identify the record, and specify the information to be contested and corrective action sought with the supporting justification.

Record Source Categories

Information in this system is obtained from:

(1) The individuals to whom the record pertains;

(2) Agency officials and documents;

(3) The testimony, affidavits and statements of witnesses;

(4) The documents, received testimony, exhibits and submissions of the parties involved in the matter.

Systems Exempted from Certain Provisions of the Act

None.