2010-23208. Privacy Act of 1974: New System of Records

AGENCY:

U.S. Office of Personnel Management (OPM).

ACTION:

Notice of a new system of records.

SUMMARY:

The Patient Protection and Affordable Care Act (the Affordable Care Act), Public Law 111-148, was enacted on March 23, 2010; the Health Care and Education Reconciliation Act (the Reconciliation Act), Public Law 111-152, was enacted on March 30, 2010. The Affordable Care Act and implementing regulations (codified in HHS interim final rules (IFR) at 45 CFR Part 147) require that non-grandfathered health insurance plans and issuers offering group and individual coverage have effective internal claims and appeals and external review processes. The effective date for these requirements is plan or policy years beginning on or after September 23, 2010. Regarding external review, the statute requires that health plans and issuers must comply with either a state external review process or a process meeting standards issued by the Secretary of Health and Human Services (HHS) that is “similar to” a state process meeting requirements in section 2719 (a “federal external review process”). The IFR includes a transition period prior to July 1, 2011, during which time HHS will work with states to assist in making any necessary changes so that the state process will meet the minimum consumer protections identified in 45 CFR 147.136 that must be met in order for the state process to apply. During this interim period, health insurance issuers in states with external review laws in effect prior to September 23, 2010 will follow that state's external review law to the extent applicable. In states that have not passed an external review law that is in effect on September 23, 2010, a health insurance issuer must follow an interim federal external review process that will be administered by the Office of Personnel Management (OPM). The system of records will be created as OPM assists HHS by providing external reviews of adverse benefit determinations and final internal adverse benefit determinations as requested by eligible claimants and their authorized representatives (“claimants”). The system of records will include any data relevant to these external reviews, and OPM proposes to add this new system of records to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. This action is necessary to meet the requirements of the Privacy Act to publish in the Federal Register notice of the existence and character of records maintained by the agency (5 U.S.C. 552a(e)(4)).

DATES:

This action will be effective without further notice on October 18, 2010, unless comments are received that would result in a contrary determination.

ADDRESSES:

Send written comments to the Office of Personnel Management, ATTN: Christopher Layton, Health Claims Disputes External Review Services, 1900 E Street, NW., Rm. 3415, Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Christopher Layton, 202-606-0004.

SUPPLEMENTARY INFORMATION:

The program associated with this system of records is part of a broader initiative directed by HHS's Office of Consumer Information and Insurance Oversight (OCIIO) to implement Section 2719 of the Affordable Care Act. HHS has discretion under the Act in the manner in which it implements the external appeals process, OPM administers a health insurance appeals program as part of its Federal Employees Health Benefits Program, and OPM has offered to permit HHS/OCIIO to utilize its existing appeals processes and frameworks to administer the interim federal appeals process (as modified by an interagency agreement). HHS/OCIIO has accepted that offer. Consequently, OPM has authority to administer the program, using an arrangement under the Economy Act, 31 U.S.C. 1535.

U.S. Office of Personnel Management.

John Berry,

Director.

SYSTEM NAME:

Health Claims Disputes External Review Services

SYSTEM LOCATION:

Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

This system will contain records on adverse benefit determinations and final internal adverse benefit determinations for claimants who qualify for external review according to the IFR and choose to appeal to OPM. Individuals may only appeal to OPM (1) if they are in a state that did not have an external review law in place on September 23, 2010, (2) if they purchase a health insurance policy or a group health plan from a health insurance issuer, (3) if they are in a non-grandfathered plan, and (4) if the plan or policy year begins on or after September 23, 2010. Health insurance issuers must notify claimants upon notice of an adverse benefit determination or final internal adverse benefit determination as to how to initiate an external review by OPM if they choose to do so. This notice must meet the requirements of 45 CFR Part 147(b)(2)(ii)(E).

CATEGORIES OF RECORDS IN THE SYSTEM:

In order to adjudicate an appeal, OPM requires claimants to submit a form with their name, insurance ID number, phone number and mailing address as well as insurer name and the claim number. In addition, claimants may choose to submit the following additional information:

a. A statement about why the claimant believes their health insurance issuer's decision was wrong, based on specific benefit provisions in the plan brochure or contract;

b. Copies of documents that support the claim, such as physicians' letters, operative reports, bills, medical records, and explanation of benefits (EOB) forms;

c. Copies of all letters the claimant sent to their insurance plan about the claim;

d. Copies of all letters the health insurance issuer sent to the claimant about the claim;

e. The claimant's daytime phone number and the best time to call; and

f. The claimant's email address if they would like to receive OPM's decision via email.

However, health insurance issuers will provide additional information and documentation. Consequently, the records in the system may include all of the following information:

a. Personal Identifying Information (Name, Social Security Number, Date of Birth, Gender, Phone number etc).

b. Address (Current, Mailing).

c. Dependent Information (Spouse, Dependents and their addresses).

d. Employment information.

e. Health care provider information.

f. Health care coverage information.

g. Health care procedure information.

h. Health care diagnosis information.

i. Provider charges and reimbursement information on coverage, procedures and diagnoses.

j. Any other letters or other documents submitted in connection with adverse benefit determinations or final internal adverse benefit determinations by claimants, healthcare providers, or health insurance issuers.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

HHS has authority to administer the program under Sections 2701 through 2763, 2791, and 2792 of the Public Health Service Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as amended. HHS has discretion under the Act in the manner in which it implements the external appeals process, and it has entered an agreement with OPM under the Economy Act, 31 U.S.C. 1535, to provide such services.

PURPOSE:

The primary purpose of this system of records is to aid in the administration of external review of adverse benefit determinations and final internal adverse benefit determinations. OPM must have the capacity to collect, manage, and access health insurance benefits appeals information and documents on an ongoing basis in order for OPM to:

a. Determine eligibility for OPM's review process.

b. Review the adverse benefit determinations and final internal adverse benefit determinations to provide effective external review.

c. Track the progress of individual appeals and ensure that claimants do not submit duplicative appeals.

d. Make information available for any subsequent litigation related to a disputed external review decision.

e. Monitor whether health insurance issuers are providing benefits to which covered individuals are entitled.

f. Maintain records for parties to the dispute so that the covered individual and the insurance issuer can obtain a record of past appeals in which they were involved.

g. Track and report to HHS on the administration of the program.

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

In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed to authorized entities, as is determined to be relevant and necessary, including disclosures outside of OPM as a routine use under 5 U.S.C. 552a(b)(3) as follows:

a. For emergency and specialized claims adjudication—To disclose to medical consultants under contract with OPM information needed to adjudicate an appeal.

b. For law enforcement purposes—To disclose pertinent information to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where OPM becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation.

c. For congressional inquiries—To provide information to a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual.

d. For judicial/administrative proceedings—To disclose information to another Federal agency, to a court, or a party in litigation before a court or in an administrative proceeding being conducted by a Federal agency, when the Government is a party to the judicial or administrative proceeding. In those cases where the government is not a party to the processing, records may be disclosed if a subpoena has been signed by a judge.

e. For litigation purposes—To disclose to the Department of Justice or in a proceeding before a court, adjudicative body, or other administrative body before which OPM or HHS is authorized to appear, when:

1. OPM, HHS, or any component thereof; or

2. Any employee of OPM or HHS in his or her official capacity; or

3. Any employee of OPM or HHS in his or her individual capacity where the Department of Justice or OPM or HHS has agreed to represent the employee; or

4. The United States, when OPM or HHS determines that litigation is likely to affect OPM or HHS or any of their components; is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or OPM of HHS is deemed by OPM to be relevant and necessary to the litigation provided, however, that the disclosure is compatible with the purpose for which records were collected.

f. In the event of data breach—To conduct investigations of the breach and for purposes of mitigation response.

g. For National Archives and Records Administration or the General Services Administration—For use in records management inspections conducted pursuant to 44 U.S.C. 2904 and 2906.

h. Within OPM for statistical/analytical studies by OPM in the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained, or for related program performance studies.

i. By program and policy staff at OPM to compile and analyze de-identified claims utilization data to identify sources of benefit and utilization costs and other information and to formulate health care program changes and enhancements to reduce cost increases, improve outcomes, improve efficiency in program administration and for other purposes.

j. Researchers in and outside the federal government for the purpose of conducting research on health care and health insurance trends and topical issues. Only de-identified data will be shared.

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

Disclosure to consumer Reporting Agencies:

None

Storage:

Paper records will be stored in a locked file cabinet within OPM. Any electronic records will be maintained in electronic systems and will be backed-up according to common convention.

Retrievability:

Records will primarily be manipulated, managed and summarized using a unique number assigned to each appeal. However, information may also be accessible by name or social security number.

Safeguards:

Paper records will be delivered to a locked P.O. Box and kept in a locked file cabinet. Electronic records will be maintained on password protected computers and systems. All individuals with access to these records will receive a background check and privacy training before accessing any of the records. OPM also restricts access to the records on the databases to employees who have the appropriate clearance.

Retention and Disposal:

OPM will maintain the records for 6 years. Computer records will be destroyed by electronic erasure. Any hard copies of records will be destroyed by shredding. A records retention schedule will be established with NARA.

System Manager and Address:

Christopher Layton, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3415, Washington, DC 20415.

Notification Procedure:

Individuals wishing to determine whether this system of records contains information about them may do so by writing to the U.S. Office of Personnel Management, FOIA Requester Service Center, 1900 E Street, NW., Room 5415, Washington, DC 20415-7900 or by emailing [e-mail].

Individuals must furnish the following information for their records to be located:

a. Full name.

b. Date and place of birth.

c. Social Security Number.

d. Signature.

e. Available information regarding the type of information requested, including the name of the insurance plan involved in any appeal and the approximate date of the appeal.

f. The reason why the individual believes this system contains information about him/her.

g. The address to which the information should be sent.

Individuals requesting access must also comply with OPM's Privacy Act regulations regarding verification of identity and access to records (5 CFR part 297).

In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:

• If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [date]. [Signature].'
• If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on [date]. [Signature].'

Contesting Record Procedure:

Individuals wishing to obtain a copy of their records or to request amendment of records about them should write to the Office of Personnel Management, ATTN: Lynelle Frye, Policy Analyst, Planning and Policy Analysis, Room 3415, Washington, DC 20415, and furnish the following information for their records to be located:

a. Full name.

b. Date and place of birth.

c. Social Security Number.

d. Signature.

e. Available information regarding the type of information that the individual seeks to have amended, including the name of the insurance plan involved in any appeal and the approximate date of the appeal.

Individuals requesting amendment must also follow OPM's Privacy Act regulations regarding verification of identity and amendment to records (5 CFR part 297).

In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:

• If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [date]. [Signature].'
• If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on [date]. [Signature].'

Record Source Categories:

Information in this system of records is obtained from:

a. Individuals who request OPM review.

b. Authorized representatives of covered individuals.

c. Health care providers.

d. Health insurance plans.

e. Medical professionals providing expert medical review under contract with OPM.

System Exemptions:

None.