Privacy Act; Systems of Records

Federal Register: March 4, 2008 (Volume 73, Number 43)

Notices

Page 11638-11643

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr04mr08-68

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

Privacy Act of 1974; Report of a New System of Records

AGENCY: Department of Health and Human Services (HHS), Centers for

Medicare & Medicaid Services (CMS).

ACTION: Notice of a New System of Records (SOR).

SUMMARY: In accordance with the Privacy Act of 1974, we are proposing to establish a new SOR titled, ``Medicaid Integrity Program System

(MIPS),'' System No. 09-70-0599. With passage of the Deficit Reduction

Act (DRA) of 2005, the Secretary of HHS was directed to establish a

Medicaid Integrity Program (MIP) designed to provide CMS the resources necessary to combat fraud, waste and abuse in the Medicaid program. The

DRA takes the partnership between CMS and the State Medicaid agencies to a new level. The MIP represents CMS' first national strategy to combat fraud and abuse in the 41-year history of the Medicaid program.

MIP offers a unique opportunity to identify, recover and prevent inappropriate Medicaid payments. It will also support the efforts of

State Medicaid agencies through a combination of oversight and technical assistance. Although individual States work to ensure the integrity of their respective Medicaid programs, MIP provides CMS with the ability to more directly ensure the accuracy of Medicaid payments and to deter those

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who would exploit the program. It advances these goals which are shared by the States and the Federal government. The combined Federal and

State resources for preventing fraud will be marshaled more effectively than ever.

The primary purpose of this system is to establish an accurate, current, and comprehensive database containing standardized enrollment, eligibility, and paid claims of Medicaid beneficiaries to assist in the detection of fraud, waste and abuse in the Medicare and Medicaid programs. Information retrieved from this system will also be disclosed to: (1) Support regulatory, reimbursement, and policy functions performed within the agency or by a contractor, consultant or a CMS grantee; (2) assist another Federal or state agency with information to enable such agency to administer a Federal health benefits program, or to enable such agency to fulfill a requirement of Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds; (3) support a research or evaluation project; (4) support litigation involving the agency; and (5) combat fraud, waste, and abuse in a federally-funded health benefit program.

We have provided background information about the new system in the

``Supplementary Information'' section below. Although the Privacy Act requires only that CMS provide an opportunity for interested persons to comment on the routine uses, CMS invites comments on all portions of this notice. See ``Effective Dates'' section for comment period.

DATES: Effective Dates: CMS filed a new system report with the Chair of the House Committee on Oversight and Government Reform, the Chair of the Senate Committee on Homeland Security & Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on February 26, 2008. To ensure that all parties have adequate time in which to comment, the new system, including routine uses, will become effective 30 days from the publication of the notice, or 40 days from the date it was submitted to

OMB and Congress, whichever is later, unless CMS receives comments that require alterations to this notice.

ADDRESSES: The public should address comments to: CMS Privacy Officer,

Division of Privacy Compliance, Enterprise Architecture and Strategy

Group, Office of Information Services, CMS, 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: James Gorman, Director, Division of

Medicaid Integrity Contracting, Program Integrity Group, Center for

Medicaid and State Operations, CMS, Mail Stop B2-2923, 7111 Security

Boulevard, Baltimore, Maryland 21244-1850. He can also be reached by telephone at 410-786-1417, or via e-mail at james.gorman@cms.hhs.gov.

SUPPLEMENTARY INFORMATION: With passage of the Deficit Reduction Act

(DRA) of 2005 the Department of Health and Human Services was directed to establish a Medicaid Integrity Program (MIP) designed to provide CMS the resources necessary to combat fraud, waste and abuse in Medicaid.

Section 6034 of the DRA requires that a comprehensive plan be developed every five years by a collective group including the Secretary of

Health and Human Services (HHS), the United States Attorney General, the Director of the Federal Bureau of Investigation, the Comptroller

General of the United States, the Inspector General of HHS, and state officials with responsibility for controlling provider fraud and abuse under Medicaid. The MIP planning group has broadly interpreted ``state officials'' to represent directors from State Medicaid programs, their program integrity units, and Medicaid Fraud Control Units. CMS' Center for Medicaid and State Operations (CMSO) is responsible for agency activities related to Medicaid and will be organizationally responsible for the administration of the MIP.

1. Description of the Proposed System of Records

   1. Statutory and Regulatory Basis for SOR

      Authority for maintenance of the system is given under Sec. 6034 of the Deficient Reduction Act of 2005 Act (Pub. L. 109-171) (revising

      Title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) which establishes the Medicaid Integrity Program under which the Secretary shall provide CMS the resources necessary to combat fraud, waste and abuse in the Medicaid program.

   2. Collection and Maintenance of Data in the System

      MIPS contain information on Medicaid beneficiaries, and physicians and other providers involved in furnishing services to Medicaid beneficiaries. Information contained in this system includes, but is not limited to: assigned Medicaid identification number, name, address, social security number, health insurance claim number, date of birth, gender, ethnicity and race, medical services, equipment, and supplies for which Medicaid reimbursement is requested, and materials used to determine amount of benefits allowable under Medicaid. Information on physicians and other providers of services to the beneficiary consist of an assigned provider identification number, and information used to determine whether a sanction or suspension is warranted.

2. Agency Policies, Procedures, and Restrictions on Routine Uses

   1. 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 that 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 MIPS information that can be associated with an individual as provided for under ``Section III.

   Proposed Routine Use Disclosures of Data in the System.'' Both identifiable and non-identifiable data may be disclosed under a routine use.

   We will only collect the minimum personal data necessary to achieve the purpose of MIPS. CMS has the following policies and procedures concerning disclosures of information that will be maintained in the system. Disclosure of information from this system will be approved only to the extent necessary to accomplish the purpose of the disclosure and only after CMS: 1. Determines that the use or disclosure is consistent with the reason that the data is being collected, e.g., to establish an accurate, current, and comprehensive database containing standardized enrollment, eligibility, and paid claims of Medicaid beneficiaries to be used for the administration of Medicaid at the Federal level, produce statistical reports, support Medicaid related research, and assist in the detection of fraud and abuse in the Medicare and Medicaid programs. 2. Determines that: a. The purpose for which the disclosure is to be made can only be accomplished if the record is provided in individually identifiable form; b. 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

   Page 11640

   additional exposure of the record might bring; and c. There is a strong probability that the proposed use of the data would in fact accomplish the stated purpose(s). 3. Requires the information recipient to: a. Establish administrative, technical, and physical safeguards to prevent unauthorized use of disclosure of the record; b. Remove or destroy at the earliest time all patient-identifiable information; and c. Agree to not use or disclose the information for any purpose other than the stated purpose under which the information was disclosed. 4. Determines that the data are valid and reliable.

3. Proposed Routine Use Disclosures of Data In the System

   1. The Privacy Act allows 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 maintained in the system: 1. To support agency contractors, or consultants, or to a grantee of a CMS-administered grant program who have been engaged by the agency to assist in the accomplishment of a CMS function relating to the purposes for this system and who need to have access to the records in order to assist CMS.

      We contemplate disclosing this information under this routine use only in situations in which CMS may enter into a contractual or similar agreement with a third party to assist in accomplishing a CMS function relating to purposes for this system.

      CMS occasionally contracts out certain of its functions when doing so would contribute to effective and efficient operations. CMS must be able to give a contractor, consultant or grantee whatever information is necessary for the contractor, or consultant to fulfill its duties.

      In these situations, safeguards are provided in the contract prohibiting the contractor, consultant or grantee from using or disclosing the information for any purpose other than that described in the contract and requires the contractor, consultant or grantee to return or destroy all information at the completion of the contract. 2. To assist another Federal or state agency to: a. Contribute to the accuracy of CMS' proper payment of Medicare/

      Medicaid benefits; and/or b. 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; and/or c. Assist Federal/state Medicaid programs within the state.

      Other Federal or state agencies in their administration of a

      Federal health program may require MIPS information for the purposes of determining, evaluating, and/or assessing cost, effectiveness, and/or the quality of health care services provided in the state.

      CMS may require MIPS data to enable them to assist in the implementation and maintenance of the Medi-Medi program.

      Disclosure under this routine use shall be used by state Medicaid agencies pursuant to agreements with HHS for determining Medicaid and

      Medicare eligibility, for quality control studies, for determining eligibility of recipients of assistance under Title IV, XVIII, XIX and

      XXI of the Act, and for the administration of the Medicaid program.

      Data will be released to the state only on those individuals who are eligible enrollees, and beneficiaries under the services of a

      Medicaid program within the state or who are residents of that state.

      We also contemplate disclosing information under this routine use in situations in which state auditing agencies require MIPS information for auditing state Medicaid eligibility considerations. CMS may enter into an agreement with state auditing agencies to assist in accomplishing functions relating to purposes for this system of records. 3. To support an individual or organization for a research project or in support of an evaluation project related to the prevention of disease or disability, the restoration or maintenance of health, or payment related projects.

      The MIPS data will provide for research or in support of evaluation projects, a broader, national perspective of the status of Medicare beneficiaries. CMS anticipates that many researchers will have legitimate requests to use these data in projects that could ultimately improve the care provided to Medicare beneficiaries and the policy that governs the care. 4. To support 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, CMS determines that the records are both relevant and necessary to the litigation and that the use of such records by the DOJ, court or adjudicatory body is compatible with the purpose for which the agency collected the records.

      Whenever CMS is involved in litigation, and occasionally when another party is involved in litigation and CMS' policies or operations could be affected by the outcome of the litigation, CMS would be able to disclose information to the DOJ, court or adjudicatory body involved. 5. To assist a CMS contractor (including, but not necessarily limited to fiscal intermediaries and carriers) that assists in the administration of a CMS-administered health benefits program, or to a grantee of a CMS-administered grant program, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such program.

      We contemplate disclosing information under this routine use only in situations in which CMS may enter into a contractual relationship or grant with a third party to assist in accomplishing CMS functions relating to the purpose of combating fraud and abuse.

      CMS occasionally contracts out certain of its functions and makes grants when doing so would contribute to effective and efficient operations. CMS must be able to give a contractor or grantee whatever information is necessary for the contractor or grantee to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor or grantee from using or disclosing the information for any purpose other than that described in the contract and requiring the contractor or grantee to return or destroy all information. 6. To assist another Federal agency or to assist an instrumentality of any governmental jurisdiction within or under the control of the

      United States

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      (including any State or local governmental agency), that administers, or that has the authority to investigate potential fraud or abuse in, a health benefits program funded in whole or in part by Federal funds, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such programs.

      Other agencies may require MIPS information for the purpose of combating fraud and abuse in such Federally-funded programs.

   2. Additional Provisions Affecting Routine Use Disclosures

      To the extent this system contains Protected Health Information

      (PHI) as defined by HHS regulation ``Standards for Privacy of

      Individually Identifiable Health Information'' (45 CFR Parts 160 and 164, 65 FR 82462 (12-28-00), Subparts A and E) disclosures of such PHI that are otherwise authorized by these routine uses may only be made if, and as, permitted or required by the ``Standards for Privacy of

      Individually Identifiable Health Information.''

      In addition, our policy will be to prohibit release even of data not directly identifiable, except pursuant to one of the routine uses or if required by law, if we determine there is a possibility that an individual can be identified through implicit deduction based on small cell sizes (instances where the patient population is so small that individuals who are familiar with the enrollees could, because of the small size, use this information to deduce the identity of the beneficiary).

4. Safeguards

   CMS has safeguards in place 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 information security requirements. Employees who maintain records in this system are instructed not to release data until the intended recipient agrees to implement appropriate management, operational and technical safeguards sufficient to protect the confidentiality, integrity and availability of the information and information systems and to prevent unauthorized access.

   This system will conform to all applicable Federal laws and regulations and Federal, HHS, and CMS policies and standards as they relate to information security and data privacy. These laws and regulations may apply but are not limited to: The Privacy Act of 1974; the Federal Information Security Management Act of 2002; the Computer

   Fraud and Abuse Act of 1986; the Health Insurance Portability and

   Accountability Act of 1996; the E-Government Act of 2002, the Clinger-

   Cohen Act of 1996; the Medicare Modernization Act of 2003, and the corresponding implementing regulations. OMB Circular A-130, Management of Federal Resources, Appendix III, Security of Federal Automated

   Information Resources also applies. Federal, HHS, and CMS policies and standards include but are not limited to: All pertinent National

   Institute of Standards and Technology publications; the HHS Information

   Systems Program Handbook and the CMS Information Security Handbook.

5. Effects of the Proposed System of Records on Individual Rights

   CMS 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.

   CMS will take precautionary measures (see item IV above) to minimize the risks of unauthorized access to the records and the potential harm to individual privacy or other personal or property rights of patients whose data are maintained in the system. CMS will collect only that information necessary to perform the system's functions. In addition, CMS will make disclosure from the proposed system only with consent of the subject individual, or his/her legal representative, or in accordance with an applicable exception provision of the Privacy Act. CMS, therefore, does not anticipate an unfavorable effect on individual privacy as a result of information relating to individuals.

   Dated: February 25, 2008.

   Charlene Frizzera,

   Chief Operating Officer, Centers for Medicare & Medicaid Services.

   SYSTEM NO. 09-70-0599

   SYSTEM NAME:

   ``Medicaid Integrity Program System (MIPS),'' HHS/CMS/CMSO.

   SECURITY CLASSIFICATION:

   Level Three Privacy Act Sensitive Data.

   SYSTEM LOCATION:

   The Centers for Medicare & Medicaid Services (CMS) Data Center, 7500 Security Boulevard, North Building, First Floor, Baltimore,

   Maryland 21244-1850 and at various contractor sites and at CMS Regional

   Offices.

   CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

   MIPS contain information on Medicaid beneficiaries, and physicians and other providers involved in furnishing services to Medicaid beneficiaries.

   CATEGORIES OF RECORDS IN THE SYSTEM:

   Information contained in this system includes, but is not limited to: Assigned Medicaid identification number, name, address, social security number (SSN), health insurance claim number (HICN), date of birth, gender, ethnicity and race, medical services, equipment, and supplies for which Medicaid reimbursement is requested, and materials used to determine amount of benefits allowable under Medicaid.

   Information on physicians and other providers of services to the beneficiary consist of an assigned provider identification number, and information used to determine whether a sanction or suspension is warranted.

   AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

   Authority for maintenance of the system is given under section 6034 of the Deficient Reduction Act of 2005 Act (Pub. L. 109-171) (revising

   Title XIX of the Social Security Act (42 U.S.C. 1396 et seq.)) which establishes the Medicaid Integrity Program under which the Secretary shall provide CMS the resources necessary to combat fraud, waste and abuse in the Medicaid program.

   PURPOSE(S) OF THE SYSTEM:

   The primary purpose of this system is to establish an accurate, current, and comprehensive database containing standardized enrollment, eligibility, and paid claims of Medicaid beneficiaries to assist in the detection of fraud, waste and abuse in the Medicare and Medicaid programs. Information retrieved from this system will also be disclosed to: (1) Support regulatory, reimbursement, and policy functions performed within the agency or by a contractor, consultant or a CMS grantee; (2) assist another Federal or state agency with information to enable such agency to administer a Federal health benefits program, or to enable such agency to fulfill a requirement of Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds; (3) support a research or evaluation project; (4) support litigation involving the agency; and (5) combat fraud, waste, and abuse

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   in a federally-funded health benefit program.

   ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES

   OR USERS AND THE PURPOSES OF SUCH USES:

   1. The Privacy Act allows 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 maintained in the system: 1. To agency contractors, or consultants, or to a grantee of a CMS- administered grant program who have been engaged by the agency to assist in the accomplishment of a CMS function relating to the purposes for this system and who need to have access to the records in order to assist CMS. 2. To another Federal or state agency to: a. Contribute to the accuracy of CMS' proper management of

      Medicare/Medicaid benefits; and/or b. 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; and/or c. Assist Federal/state Medicaid programs within the state. 3. To an individual or organization for a research project or in support of an evaluation project related to the prevention of disease or disability, the restoration or maintenance of health, or payment related projects. 4. 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, CMS determines that the records are both relevant and necessary to the litigation and that the use of such records by the DOJ, court or adjudicatory body is compatible with the purpose for which the agency collected the records. 5. To a CMS contractor (including, but not necessarily limited to fiscal intermediaries and carriers) that assists in the administration of a CMS-administered health benefits program, or to a grantee of a

      CMS-administered grant program, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such program. 6. To another Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United

      States (including any State or local governmental agency), that administers, or that has the authority to investigate potential fraud or abuse in, a health benefits program funded in whole or in part by

      Federal funds, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such programs.

   2. Additional Provisions Affecting Routine Use Disclosures

      To the extent this system contains Protected Health Information

      (PHI) as defined by HHS regulation ``Standards for Privacy of

      Individually Identifiable Health Information'' (45 CFR Parts 160 and 164, 65 FR 82462 (12-28-00), Subparts A and E) disclosures of such PHI that are otherwise authorized by these routine uses may only be made if, and as, permitted or required by the ``Standards for Privacy of

      Individually Identifiable Health Information.''

      In addition, our policy will be to prohibit release even of data not directly identifiable, except pursuant to one of the routine uses or if required by law, if we determine there is a possibility that an individual can be identified through implicit deduction based on small cell sizes (instances where the patient population is so small that individuals who are familiar with the enrollees could, because of the small size, use this information to deduce the identity of the beneficiary).

      POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING,

      AND DISPOSING OF RECORDS IN THE SYSTEM:

      STORAGE:

      All records are stored on computer diskette and magnetic media.

      RETRIEVABILITY:

      Information can be retrieved by the assigned beneficiary identification number, SSN, HICN, and the assigned physician or other providers of services identification number.

      SAFEGUARDS:

      CMS has safeguards in place 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 information security requirements. Employees who maintain records in this system are instructed not to release data until the intended recipient agrees to implement appropriate management, operational and technical safeguards sufficient to protect the confidentiality, integrity and availability of the information and information systems and to prevent unauthorized access.

      This system will conform to all applicable Federal laws and regulations and Federal, HHS, and CMS policies and standards as they relate to information security and data privacy. These laws and regulations may apply but are not limited to: The Privacy Act of 1974; the Federal Information Security Management Act of 2002; the Computer

      Fraud and Abuse Act of 1986; the Health Insurance Portability and

      Accountability Act of 1996; the E-Government Act of 2002; the Clinger-

      Cohen Act of 1996; the Medicare Modernization Act of 2003; and the corresponding implementing regulations. OMB Circular A-130, Management of Federal Resources, Appendix III, Security of Federal Automated

      Information Resources also applies. Federal, HHS, and CMS policies and standards include but are not limited to: All pertinent National

      Institute of Standards and Technology publications; the HHS Information

      Systems Program Handbook and the CMS Information Security Handbook.

      RETENTION AND DISPOSAL:

      CMS will retain identifiable MIPS data for a total period not to exceed 5 years after the final determination of the case is completed.

      SYSTEM MANAGER(S) AND ADDRESS:

      Director, Division of Medicaid Integrity Contracting, Program

      Integrity Group, Center for Medicaid and State Operations, CMS, Mail

      Stop B2-2923, 7111 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, HICN, address, date of birth, and gender, and for verification purposes, the subject individual's name (woman's maiden name, if applicable), and SSN.

      Furnishing the SSN is voluntary, but it

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      may make searching for a record easier and prevent delay.

      RECORD ACCESS PROCEDURE:

      For purpose of access, use the same procedures outlined in

      Notification Procedures above. Requestors should also specify the record contents being sought. (These procedures are in accordance with department regulation 45 CFR 5b.5(a)(2)).

      CONTESTING RECORDS PROCEDURES:

      The subject individual should contact the system manager named above, and reasonably identify the records 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).

      RECORDS SOURCE CATEGORIES:

      CMS obtains the identifying information contained in this system from state Medicaid agencies, or Medicaid Management Information

      Systems maintained by the individual states, and information contained on CMS Form 2082.

      SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS OF THE ACT:

      None.

      FR Doc. E8-4069 Filed 3-3-08; 8:45 am

      BILLING CODE 4120-03-P