00-18288. Privacy Act of 1974, New System of Records: Professional Standards Board Action and Proficiency Rating Folder (Title 38)-VA 101VA05

AGENCY:

Department of Veterans Affairs.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the Department of Veterans Affairs (VA) is proposing to issue a new system of records entitled Professional Standards Board Action and Proficiency Rating Folder (Title 38)—VA (101VA05). VA is simultaneously altering and reissuing the system of records entitled General Personnel Records (Title 38)—VA (76VA05). The alteration removes information from 76VA05 concerning competency assessments and related documents, proficiency reports, and employee statements regarding proficiency reports given and recommendations based on them. It also removes professional standards board actions and documents associated with those board actions that are not specifically covered under other systems of records. A new system of records is proposed because the purposes for which these records are maintained and used differ from other records currently in 76VA05. For example, the employees covered, the types of records, purpose for the records, legal authority for maintenance of the systems, and routine uses associated with each of these systems of records are different. The physical location of these records may also differ from the records covered by 76VA05.

DATES:

Submit comments on or before August 21, 2000.

ADDRESSES:

Interested persons are invited to submit written comments, suggestions, or objections regarding this system of records to the Director, Office of Regulations Management (02D), 810 Vermont Avenue, NW., Washington, DC 20420. All written comments received will be available for public inspection in the Office of Regulations Management, Room 1154, 810 Vermont Avenue, NW., Washington, DC 20420 only between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. If no public comment is received during the 30-day review period allowed for public comment, or unless otherwise published in the Federal Register by VA, the reissued system of records is effective August 21, 2000.

FOR FURTHER INFORMATION CONTACT:

Mr. Brian McVeigh, Department of Veterans Affairs (051A), 810 Vermont Avenue, NW, Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

VA issued a system of records entitled General Personnel Records (Title 38)—VA (76VA05) in the Federal Register 53 FR 27258 (7/19/88) and amended that system in 55 FR 42534 (10/19/90), 58 FR 40852 (7/30/93) and 61 FR 14853 (4/3/96). This system included all personnel records other than medical records for most Veterans Health Administration employees appointed under Title 38, United States Code.

This system of records would include information removed from 76VA05 concerning proficiency reports, employee statements regarding proficiency reports given and recommendations based on them, and competency assessments and documents associated with those assessments. It also includes professional standards board actions and documents associated with those board actions that are not specifically covered under the system of records entitled Agency-Initiated Personnel Actions (Title 38)—VA (102VA05).

A new system of records is being proposed because the characteristics of the records in this system differ from those in 76VA05. The employees covered, the types of records, purposes of the systems, legal authority for maintenance of the systems, and routine uses associated with these systems of records are different. The physical location of these records may also differ from the records covered by 76VA05.

Further, 76VA05 had 40 routine uses. Only 26 routine uses were determined to be appropriate for records in this new system. The changes to the routine uses formerly in 76VA05 are as follows:

a. Routine use 1 relating to disclosures to the Office of Personnel Management has been deleted. Such disclosures are only made from the system of records entitled Personnel and Accounting Pay System-VA (27VA047).

b. Routine uses 3 through 7 were deleted. This information would be disclosed from another system of records (76VA05).

c. Routine uses 8 and 9 (now 2 and 3) relating to awards, honors and other types of employee recognition have been modified to more clearly indicate what disclosures are made, to whom the disclosures are made and the purposes of such disclosures.

d. Routine use 10 (now 4) is being modified to clarify the conditions under which data is disclosed to officials of labor organizations recognized under 5 U.S.C., chapter 71. The clarification ties such disclosures to the law authorizing the disclosures, i.e., 5 U.S.C. 7114(b)(4). The former version authorized disclosures to officials of labor organizations “when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.”

e. Routine use 11 is modified. VA is prohibited from promulgating routine uses that would permit disclosures in response to requests for information for civil or law enforcement purposes or in response to court orders. Such requests must be submitted under the provisions of 5 U.S.C. 552a(b)(7) or (b)(11), as applicable. See Doe v. DiGenova, 779 F. 2d 74 (D.C. Cir. 1985) and Doe v. Stephens, 851 F. 2d 1457 (D.C. Cir. 1988), and an August 28, 1989, opinion from the Office of Legal Counsel, Department of Justice. Routine use 11 (now 5) no longer includes such disclosures; however, it has been modified to permit VA to disclose, on its own initiative, relevant information if there is reason to believe that a violation of statute, rule or regulation has occurred.

f. Routine use 14 (now 8) no longer permits disclosures at the request of agencies in the executive, legislative, or judicial branch of the Federal government or to the government of the District of Columbia for investigative purposes. Such requests must be submitted under the provisions of 5 U.S.C. 552a(b)(7). That portion of the routine use has been deleted.

g. Routine use 15 (now 9) has been modified to limit the reason for such disclosures to obtaining accreditation or other approval ratings. It also now permits disclosures to other Federal agencies for this purpose. The former version of this routine use was overly broad.

h. Routine use 18 (now 12) has been modified so that it no longer permits disclosures in response to subpoenas or court orders. Applicable case law (see paragraph e above) prohibits disclosures in response to subpoenas. Court orders directing the production of information must also meet the requirements of 5 U.S.C. 552a(b)(11). The revised routine use would permit VA to disclose relevant information on its own initiative in certain legal proceedings if VA is party to those proceedings and disclosure is necessary to protect its interests.

i. Routine use 19, relating to requests for discovery or for the appearance of witnesses, has been deleted, since it is no longer consistent with applicable case law (see paragraph f above).

j. Routine use 24 related to disclosures to VA-appointed representatives concerning fitness for duty examinations and disability retirement procedures has been deleted. The information is being removed from this system of records and placed in a new system entitled Agency-Initiated Personnel Actions (Title 38)—VA (102VA05),

k. Routine use 25, concerning disclosures because an individual may have contracted an illness, been exposed to, or suffered from a health hazard while employed by the Federal government, is being deleted. This subject is addressed in 5 U.S.C. 552a(b)(8).

l. Routine uses 26 and 27 have been deleted. These disclosures would be made from another system of records (76VA05).

m. Routine use 29 (now 18), is being changed to delete the language concerning disclosures to the Equal Employment Opportunity Commission to ensure compliance with the Uniform Guidelines on Employee Selection Procedures, since VA has not chosen to adopt the Uniform Guidelines for use in its Title 38 employment procedures.

n. Routine use 30 (now 19) is being clarified to indicate that disclosures to the Federal Labor Relations Authority and Federal Service Impasses Panel may only be made after appropriate jurisdiction has been established. Matters or questions concerning or arising out of (1) professional conduct or competence, (2) peer review, and (3) the establishment, determination or adjustment of compensation shall be decided by the Secretary of Veterans Affairs and is not itself subject to collective bargaining and may not be reviewed by another agency. See 38 U.S.C. 7422.

o. Routine use 31 has been deleted. These disclosures would be made from another system of records.

p. Routine use 32 (now 20) has been modified to permit disclosures to Federal agencies for the purposes outlined in the routine use. For example, such disclosures will be made to the Department of Health and Human Services Exclusionary Database to comply with the requirements of the Balanced Budget Act of 1997, Pub.L. 105-53.

q. Routine use 33 regarding disclosures of information in response to requests from agencies responsible for the issuance, retention, or revocation of licenses, certification, or registrations required to practice a health care profession has been deleted. Such requests must conform to the requirements of 5 U.S.C. 552a(b)(7).

r. Routine uses 35 and 36 were deleted. Such disclosures would be made from another system of records.

s. Routine use 39 (now 24) concerning disclosures to license monitoring agencies is being modified to exclude language concerning computer matching. Such disclosures are not made from this system of records.

t. Routine use 40 concerning disclosures to a garnishing party was not included in this system of records. Such information would be disclosed from 76VA05.

u. A new routine use (25) permits disclosures to contractors, subcontractors, grantees, or volunteers performing or working on a contract, service, grant, cooperative agreement, or job for the Federal government. However, such disclosures must be in the interest of VA and compatible with the intended purposes for which the record was created.

v. A new routine use (26) permits disclosing information concerning information to the Department of Health and Human Services' Healthcare Integrity and Protection Data Base pursuant to section 221(a), Pub. L. 104-191, and the associated Department of Health and Human Services regulations, 45 CFR part 61.

Notices concerning the alteration of 76VA05 and another related new system of records entitled Agency-Initiated Personnel Actions (Title 38)—VA (102VA05) are being released simultaneously.

Approved: July 6, 2000.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

101VA05

System Name:

Professional Standards Board Action and Proficiency Rating Folder (Title 38)—VA.

System Location:

Active records are maintained at the Department of Veterans Affairs (VA) Central Office, 810 Vermont Avenue, NW, Washington, DC 20420 and VA field facilities. Inactive records are retired to the National Personnel Records Center, 111 Winnebago Street, St. Louis, MO 63118. When VA determines that all or a portion of these records need to be maintained in a different location, e.g., VA Central Office, such records are covered by this system.

Categories of Individuals Covered by the SYstem:

Current and former employees appointed under 38 U.S.C. 7306, 7401(1), 7401(3), and 7405, except students, trainees, medical support personnel, and those appointed on a fee or without compensation basis. This includes employees such as physicians, dentists, podiatrists, optometrists, nurses, nurse anesthetists, physician assistants, expanded-function dental auxiliaries, certified respiratory therapy technicians, registered respiratory therapists, licensed physical therapists, licensed practical or vocational nurses, occupational therapists, and pharmacists. This system of records does not cover applicants for positions covered by this system of records. Such individuals are covered by the system of records entitled Applicants for Employment Under Title 38, USC-VA (02VA135). It also does not cover the performance appraisals of Title 38 employees appointed under 38 U.S.C. 7306, facility Directors appointed under 38 U.S.C. 7401(1), or “hybrid” title 38 employees appointed under 38 U.S.C. 7401(3) or 7405(a)(1)(B). The performance appraisals of these employees are covered under the Employee Performance File System of Records (OPM/GOVT-2).

Categories of Records in the System:

All categories of records may include identifying information, such as name, date of birth, Social Security number, service computation date, facility number, current position title, and the employee's current grade, level, and step rate. Records in this system include:

a. Copies of the employee's employment application, curriculum vitae, and transcripts of higher education. The original documents are maintained in the General Personnel Records (Title 38)—VA (76VA05).

b. Board Actions (VA Form 2543) and recommendations/documentation associated with those actions. The Title 38 personnel system utilizes a peer review process for making recommendations concerning appointments, advancements, awards, promotion reconsideration, conversions from one type of Title 38 appointment to another, and other personnel actions. After receiving input from an employee's supervisor, the appropriate Professional Standards Board (the employee's peers) makes recommendations for consideration by appropriate management officials. The recommendations and management action taken are recorded on the VA Form 2543. The VA Form 2543 documenting recommendations and management actions taken because of a probationary review, separation based on pre-employment suitability, or separation based on failure to meet required physical standards are also included in this system of records. However, all supporting documents associated with the actions in the preceding sentence are to be included in the records system 102VA05. This includes notices of proposed action, materials relied on by VA to support the reason(s) for the action, replies by employees, statements of witnesses, hearing notices, and other reports related to these actions.

c. Proficiency reports documenting the proficiency ratings of employees and any comments associated with those proficiency reports.

d. On-going, periodic assessments of an employee's education, experience, and training to ensure they can effectively meet the requirements of their position (i.e., competency assessments and associated documents).

Authority for Maintenance of the System:

38 U.S.C. 501(a), 7304 and 7406(c)(1).

Purpose(s):

This system is a repository for Professional Standards Board recommendations and the information needed to make those recommendations (e.g., employment applications, transcripts of higher education, and proficiency reports). It also contains a record of management actions taken with respect to Professional Standards Board recommendations. The actions taken give legal force and effect to personnel transactions and establish employee rights and benefits under pertinent laws and regulations governing Federal employment. They also provide a basic source of factual data about a person's VA employment. Records in this system assist Professional Standards Boards and others to determine whether a variety of personnel actions are appropriate. They are also used to obtain information needed to provide other personnel services.

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

1. To disclose information to government training facilities (Federal, State and local) and to non-government training facilities (private vendors of training course or programs, private schools, etc.) for training purposes.

2. To disclose relevant information to third parties considering VA employees for awards or recognition and to publicize information about such awards or recognition. This may include disclosures to public and private organizations, including news media, which grant or publicize employee awards or honors.

3. To disclose information about incentive awards and other awards or honors granted by VA. This may include disclosure to public and private organizations, including news media, which publicize such recognition.

4. To disclose the information listed in 5 U.S.C. 7114(b)(4) to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.

5. VA may, on its own initiative, disclose relevant information to a Federal agency (including Offices of the Inspector General), State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, or regulation if there is reason to believe that a violation may have occurred. This routine use does not authorize disclosures in response to requests for information for civil or criminal law enforcement activity purposes, nor does it authorize disclosure of information in response to court orders. Such requests must meet the requirements of 5 U.S.C. 552a(b)(7) or (b)(11), as applicable.

6. To disclose pertinent information to any source when necessary to obtain information relevant to a conflict-of-interest investigation or determination.

7. To disclose information to any source from which additional information is requested (to the extent necessary to identify the individual, inform the source of the purposes(s) of the request, and to identify the type of information requested), when necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the conducting of a security or suitability investigation of an individual, the letting of a contract, or the issuance of a license, grant, or other benefit.

8. To disclose to an agency in the executive, legislative, or judicial branch, or the District of Columbia's Government in response to its request, or at the initiation of VA, information in connection with the hiring of an employee, the issuance of a security clearance, the conducting of a security or suitability investigation of an individual, the letting of a contract, the issuance of a license, grant or other benefit by the requesting agency, or the lawful statutory or administrative purpose of the agency to the extent that the information is relevant and necessary to the requesting agency's decision.

9. To disclose relevant information to non-Federal agencies (i.e., State or local governments), and private sector organizations, boards, bureaus, or commissions (e.g., the Joint Commission on Accreditation of Healthcare Organizations) when such disclosures are required to obtain accreditation or other approval ratings.

10. To disclose information to the Office of Management and Budget at any stage in the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular No. A-19.

11. To provide information to a congressional office from the records of an individual in response to an inquiry from the congressional office made at the request of the individual.

12. VA may, on its own initiative, disclose information to another Federal agency, court, or party in litigation before a court or other administrative proceeding conducted by a Federal agency, if VA is a party to the proceeding and VA needs to disclose such information to protect its interests.

13. To disclose information to the National Archives and Records Administration (NARA) for records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.

14. To disclose to persons engaged in research and survey projects information necessary to locate individuals for personnel research or survey response, and to produce summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained, or for related workforce studies. While published statistics and studies do not contain individual identifiers, in some instances, the selection of elements of data included in the study may be structured in such a way as to make the date individually identifiable by inference.

15. To provide an official of another Federal agency information needed in the performance of official duties related to reconciling or reconstructing data files in support of the functions for which the records were collected and maintained.

16. When an individual to whom records pertain is mentally incompetent or under other legal disability, information in the individual's records may be disclosed to any person or entity responsible for managing the individual finances to the extent necessary to ensure payment of benefits to which the individual is entitled.

17. To disclose information to officials of the Merit Systems Protection Board or the Office of the Special Counsel, when requested in connection with appeals, special studies of the civil service and other merit systems, review of rules and regulations, investigation of alleged or possible prohibited personnel practices, and such other functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be authorized by law.

18. To disclose information to the Equal Employment Opportunity Commission when requested in connection with investigations of alleged or possible discriminatory practices, examination of Federal affirmative employment programs, or for other functions of the Commission as authorized by law.

19. To disclose to the Federal Labor Relations Authority (including its General Counsel) information related to the establishment of jurisdiction, the investigation and resolution of allegations of unfair labor practices, or information in connection with the resolution of exceptions to arbitration awards when a question of material fact is raised; to disclose information in matters properly before the Federal Services Impasses Panel.

20. Records from this system of records may be disclosed to a Federal, State, or local government agency or licensing board and/or to the Federation of State Medical Boards or a similar non-government entity. These entities maintain records concerning individuals' employment or practice histories or concerning the issuance, retention, or revocation of licenses or registration necessary to practice an occupation, profession, or specialty. Disclosures would be made for the Agency to obtain information determined relevant to an Agency decision concerning the hiring, retention, or termination of an employee. Disclosures may also be made to inform licensing boards or the appropriate non-governmental entities about the health care practices of a terminated, resigned or retired health care employee whose professional health care activity so significantly failed to conform to generally accepted standards of professional practice as to raise reasonable concern for the health and safety of patients.

21. To disclose relevant information to the Department of Justice and United States Attorneys in defense or prosecution of litigation involving the United States and to Federal agencies upon their request in connection with review of administrative tort claims filed under the Federal Tort Claims Act, 28 U.S.C. 2672.

22. To disclose relevant and necessary hiring, performance, or other personnel-related information to any facility with which there is, or there is proposed to be, an affiliation, sharing agreement, contract, or similar arrangement, for purposes of establishing, maintaining, or expanding any such relationship.

23. Identifying information in this system, including name, Social Security number, and other information as is reasonably necessary to identify such an individual, may be disclosed to the National Practitioner Data Bank (NPDB) at the time of hiring and/or clinical privileging/reprivileging of health care practitioners, and other times as deemed necessary by VA, in order for VA to obtain information relevant to a Department decision concerning the hiring, privileging/reprivileging, retention, or termination of the applicant or employee.

24. Relevant information from this system of records may be disclosed to the NPDB or to a State or local government licensing board which maintains records concerning the issuance, retention, or revocation of licenses, certifications, or registrations necessary to practice an occupation, profession, or specialty when under the following circumstances, through peer review process that is undertaken pursuant to VA policy, negligence, professional incompetence, responsibility for improper care, and/or professional misconduct has been assigned to a physician or licensed or certified health care practitioner: (1) On any payment in settlement of (or partial settlement of, or in satisfaction of) a judgement in a medical malpractice action or claim; or, (2) on any final decision that adversely affects the clinical privileges of a physician or practitioner for a period of more than 30 days.

25. To disclose information to contractors, subcontractors, grantees, or others performing or working on a contract, grant, or cooperative agreement for the Federal government, provided disclosure is in the interest of the Government and the information to be disclosed is relevant and necessary for accomplishing the intended uses of the information and necessary to perform services under the contract, grant, or cooperative agreement.

26. Information from this system of records will be disclosed to the Healthcare Integrity and Protection Data Base as required by section 1122E of the Social Security Act (as added by Sec. 221(a) of Pub. L. 104-191) and the associated implementing regulations issued by the Department of Health and Human Services, 45 CFR Part 61. For example, VA is required to report adjudicated adverse personnel actions based on acts or omissions that either affected or could have affected the delivery of health care services.

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

STORAGE:

These records may be maintained in file folders, on lists and forms, on microfilm or microfiche, and in computer processable storage media.

RETRIEVABILITY:

These records may be retrieved using various combinations of name, birth date, Social Security number, or identification number of the individual on whom they are maintained.

SAFEGUARDS:

Access to areas where these records are maintained is restricted to VA employees, contractors, or subcontractors on a “need to know” basis; strict control measures are enforced to ensure that disclosure to these individuals is also based on this same principle. File areas are locked after normal duty hours and are protected from outside access by VA police officers or other types of alarm systems.

Retention and Disposal:

The Professional Standards Board Action and Proficiency Rating Folder is maintained for the period of the employee's service in VA and is then transferred with the Merged Records Personnel Folder to the National Personnel Records Center (NPRC) for storage, or, as appropriate, to the next employing Federal agency.

a. VA maintains the Professional Standards Board Action and Proficiency Rating Folder as long as VA employs the individual. Within 90 days after the individual separates from Federal employment, the record is sent with the Merged Records Personnel Folder to the NPRC for long-term storage. The records of retired employees or employees who die in service are sent to the Records Center within 120 days of the retirement or death.

b. Records in this system must be maintained and disposed of in accordance with General Records Schedule 1, VA Records Control Schedule 10-1, the Office of Personnel Management Guide to Federal Recordkeeping, and the Memorandum of Understanding concerning this subject between VA, the Office of Personnel Management, and National Archives and Records Administration.

System Manager(s) and Address:

Deputy Assistant Secretary for Human Resources Management (05), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420.

Notification Procedure:

Individuals wishing to inquire whether this system of records contains information about them should contact the appropriate office as follows:

a. Non-VA Federal employees should contact the responsible office (as designated by their agency) regarding records in this system. VA employees should contact the office responsible for human resources management at their installation.

b. Former Federal employees should contact the National Personnel Records Center (Civilian), 111 Winnebago Street, St. Louis, Missouri 63118, regarding the records in this system. Individuals must furnish the following information so their records may be located and identified: full name(s), date of birth, Social Security number, last employing agency (including duty station), approximate dates of employment, and signature.

Record Access Procedures:

(See Notification Procedure).

Contesting Record Procedures:

Current employees wishing to request amendment of their records should contact the office responsible for human resources management at their current installation. Former employees should contact the Deputy Assistant Secretary for Human Resources Management. (See System Manager and Address.) Individuals must furnish the following information for their records to be located and identified: Full name(s); date of birth; Social Security number; and signature. To facilitate identification of records, former employees must also provide the name of their last Department of Veterans Affairs facility and approximate dates of employment.

Record Source Categories:

Employees, supervisors, managers, members of Professional Standards Boards, and other VA officials provide the information in this system of records. Individuals or other entities outside of VA may also provide relevant and necessary information. For example, organizations where the subject previously worked may provide information.