00-19336. Privacy Act of 1974, as Amended; Revisions to Existing Systems of Records

AGENCY:

Social Security Administration (SSA).

ACTION:

Revision to existing systems of records.

SUMMARY:

In accordance with the Privacy Act (5 U.S.C. 552a(e)(4)), we are issuing public notice of a revision to SSA's special procedure for providing individuals notification of, or access to, their medical records in SSA's possession when direct access to the records may have an adverse affect on the individual to whom the record pertains. The revised procedure is applicable to 28 of SSA's systems of records. The revised procedure is the result of a Seventh Circuit decision invalidating SSA's regulation on access to medical records. See 20 CFR 401.55. Thus, we are changing the “Notification Procedure” and “Record Access Procedures” sections in each system of records notice to conform to the Seventh Circuit's decision.

We invite public comment on this proposal.

DATES:

The proposed revisions will become effective August 1, 2000.

ADDRESSES:

Interested individuals may comment on this publication by writing to the SSA Privacy Officer, Social Security Administration, 3-F-1 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401. All comments received will be available for public inspection at the above address.

FOR FURTHER INFORMATION CONTACT:

Ms. Pamela McLaughlin, Social Insurance Program Specialist, Social Security Administration, Room 3-C-2 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Discussion of Revision

On June 13, 2000, in Bavido v. Apfel, No. 98-4046, 2000 U.S. App. LEXIS 13547, the Seventh Circuit held that the special procedure in the Social Security Administration's (SSA's) regulations for providing individuals access to their medical records through a designated representative is invalid. See 20 CFR 401.55(b)(ii). Prior to the Seventh Circuit's decision, the special procedure required individuals requesting notification of, or access to, their medical records to designate a responsible representative to receive the record. The special procedures allowed the designated representative to use his or her discretion to withhold all or a portion of an individual's medical record. The Seventh Circuit held that the procedure was inconsistent with the Privacy Act (5 U.S.C. 552a) because it requires an individual to designate a representative who ultimately has complete discretion to disclose or to withhold the requested information. Although the court invalidated this portion of the regulation, it recognized that an agency may have a special procedure for access to sensitive medical records, such as psychological records, but the procedure must assure the ultimate disclosure of the records to the requesting individual.

As a result of the court's decision, SSA is revising the Agency's special procedure regarding providing individuals access to their medical records. The revised special procedure will still require individuals requesting access to medical records to designate a responsible representative to receive the medical records if the Agency determines that direct access may adversely affect the individual. However, the responsible representative chosen by the subject of the medical record(s) must ultimately provide all of the records to him or her. The representative cannot use discretion to withhold any portion of the records. The revised special procedure found in the “Notification Procedure” and “Record Access Procedures” sections of each Privacy Act system notice listed below will read as follows:

An individual who requests access to his or her medical records shall be given direct access to those records unless SSA determines that it is likely that direct access would adversely affect the individual. If SSA determines that direct access to the medical record(s) would likely adversely affect the individual, he or she must designate a responsible representative who is capable of explaining the contents of the medical record(s) to him and who would be willing to provide the entire record(s) to the individual.

We are not republishing in their entirety the notices of systems of records to which we are revising the special procedures for access to medical records because of the large number of those systems of records and the costs of republishing individual notices of each one. Instead, we are republishing only the identification number, and the name of each system, and the volume, page number, and date of the Federal Register issue in which the systems notice was last published. The revision will be included in the following SSA systems notices:

(1) Working File of the Appeals Council, 60-0004 (59 FR 46439, dated 09/08/94),

(2) Storage of Hearing Records: Tape Cassettes, 60-0006 (59 FR 46439, dated 09/08/94),

(3) Hearing and Appeals Case Control System, 60-0009 (59 46439, dated 09/08/94),

(4) Quality Review System, 60-0040 (59 FR 46439, dated 09/08/94),

(5) Quality Review Case Files, 60-0042 (59 FR 46439, dated 09/08/94),

(6) Disability Determination Service Processing File, 60-0044 (59 FR 46439, dated 09/08/94),

(7) Completed Determination Record-Continuing Disability Determinations, 60-0050 (59 FR 46439, dated 09/08/94),

(8) Quality Evaluation Data Records, 60-0057 (59 FR 46439, dated 09/08/94),

(9) Public Inquiry Correspondence File, 60-0078 (59 FR 52308, dated 10/17/94),

(10) Claims Folders System, 60-0089 (65 FR 13808, dated 03/14/00),

(11) Master Beneficiary Record, 60-0090 (60 FR 52948, dated 10/11/95),

(12) Supplemental Security Income Record and Special Veterans Benefits, 60-0103 (65 FR 32142, dated 05/22/00),

(13) Matches of Internal Revenue Service and Social Security Administration Data with Census Survey Data (Joint SSA/CENSUS Statistics Development Project), 60-0148 (47 FR 45589, dated 10/13/82),

(14) Matches of Internal Revenue Service (IRS) and Social Security Administration (SSA) Data (Joint SSA/Treasury Department, Office of Tax Analysis, Statistics Development Project), 60-0149 (47 FR 45589, dated 10/13/82),

(15) Continuous Work History Sample (Statistics), 60-0159 (47 FR 45589, dated 10/13/82),

(16) Disability Studies, Surveys, Records and Extracts (Statistics), 60-0196 (47 FR 45589, dated 10/13/82),

(17) Extramural Surveys (Statistics), 60-0199 (47 FR 45589, dated 10/13/82),

(18) Retirement and Survivors Studies, Surveys, Records and Extracts (Statistics), 60-0200 (47 FR 45589, dated 10/13/82),

(19) Old Age, Survivors and Disability Beneficiary and Worker Records and Extracts (Statistics), 60-0202 (47 FR 45589, dated 10/13/82),

(20) Supplemental Security Income Studies, Surveys, Records and Extracts (Statistics), 60-0203 (47 FR 45589, dated 10/13/82),

(21) Beneficiary, Family and Household Surveys, Records and Extracts System (Statistics), 60-0211 (47 FR 45589, dated 10/13/82),

(22) Quality Review of Hearing/Appellate Process, 60-0213 (59 FR 46439, dated 09/08/94),

(23) Disability Insurance and Supplemental Security Income Demonstration Projects and Experiments System, 60-0218 (59 FR 46439, dated 09/08/94),

(24) Vocational Rehabilitation Reimbursement Case Processing System, 60-0221 (59 FR 46439, dated 09/08/94),

(25) Plans for Achieving Self-Support (PASS), Management Information System, 60-0255 (formerly 05-009) (61 FR 46675, dated 09/04/96),

(26) Vocational Rehabilitation; State Vocational Rehabilitation Agency Information (VR SVRA) File, 60-0253 (formerly 05-007) (63 FR 7034, dated 02/11/98),

(27) Vocational Rehabilitation; SSA Disability Beneficiaries/Recipients Eligible for Re-referral to an Alternate Vocational Rehabilitation Service Provider (VR Re-referral), 60-0254 (formerly 05-008) (63 FR 7034, dated 02/11/98), and

(28) Social Security Title VIII Special Veterans Benefits Claims Development and Management Information System, 60-0273 (65 FR 13803, dated 03/14/00)

We will amend SSA's disclosure regulation (20 CFR part 401) to include the revised special procedure. Pending amendment of the regulations, we are announcing the revised special procedure via this publication.

II. Effect of Revisions on Individual Rights

The proposed changes will:

(1) Revise SSA's special procedures for access to medical records in accordance with Bavido v. Apfel;

(2) Clarify that an individual is not required to designate a representative in writing unless the Agency first determines that direct access to those records would adversely affect him; and

(3) Indicate that a designated representative does not have discretion to withhold the records from the individual.

Dated: July 26, 2000.

Darrell Blevins,

SSA Privacy Officer.