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Notice

Privacy Act of 1974, New System of Records: Agency-Initiated Personnel Actions (Title 38)-VA (102VA05)

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Information about this document as published in the Federal Register.

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AGENCY:

Department of Veterans Affairs.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the Department of Veterans Affairs (VA) is proposing a new system of records entitled Agency-Initiated Personnel Actions (Title 38)—VA (102VA05). VA Start Printed Page 46552is simultaneously altering and reissuing the system of records entitled General Personnel Records (Title 38)—VA (76VA05). The alteration removes from 76VA05 information associated with processing disciplinary and adverse actions, disqualification during probation, physical disqualification, agency-initiated disability retirements, and suitability determinations. A new system of records is proposed because the purposes of the records in this system differ from the records in 76VA05. The employees covered, the types of records, purposes of the records systems, legal authority for maintenance of the systems, and routine uses associated with each of these record systems are different. The physical location of these records may also differ from the records covered by 76VA05.

DATES:

Submit comments on or before August 28, 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 28, 2000.

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FOR FURTHER INFORMATION CONTACT:

Mr. Brian McVeigh, Department of Veterans Affairs (051A), 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-9821.

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SUPPLEMENTARY INFORMATION:

VA issued a system of records entitled General Personnel Records (Title 38)—VA (76VA05) in the Federal Register 53 FR 40852 (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 processing disciplinary and adverse actions, disqualification during probation, physical disqualification, agency-initiated disability retirements, and suitability determinations. This includes copies of any notice of proposed action, materials relied on by VA to support the reason(s) for the action, replies by employees, statements of witnesses, hearing notices, as well as reports and other correspondence or documents related to these actions. A new system of records is proposed because the purposes of the records in this system differ from the records 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 each of 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 23 routine uses were determined to be appropriate for the records contained in this new records 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 2 through 9 have been deleted. Disclosures of such information would come from other records systems (e.g., 76VA05).

c. Routine use 10 (now 1) 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.”

d. Routine use 11 is modified. VA is prohibited from promulgating routine uses that would permit disclosures in response to request 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 2) 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.

e. Routine use 14 (now 5) 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 U.S.C. 552a(b)(7). That portion of the routine use has been deleted.

f. Routine use 15 (now 6) 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.

g. Routine use 16 has been deleted. Disclosures of such information would come from other records systems (e.g., 76VA05).

h. Routine use 18 (now 8) has been modified so that it no longer permits disclosures in response to subpoenas or court orders. Applicable case law (see paragraph d 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 d above).

j. Routine use 24 (now 13) related to disclosures to VA-appointed representatives concerning fitness for duty examinations and disability retirement procedures has been moved from 76VA05, as it applies to actions covered by this system of records.

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. This information is disclosed from another system of records (76VA05).

m. Routine use 29 (now 15), 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 been chosen to adopt the Uniform Guidelines for use in its Title 38 employment procedures.Start Printed Page 46553

n. Routine use 30 (now 16), 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. This information is disclosed from another system of records (76VA05).

p. Routine use 32 (now 17) is being modified to include Federal agencies. For example, disclosures will be made to the Department of Health and Human Services Exclusionary Database as required by 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, relating to disclosures of information through computer matching, have been deleted, as such disclosures are not made from this system of records.

s. Routine use 39 (now 21) 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 were not included in this system of records. Such information would be disclosed from 76VA05.

u. A new routine use (number 22) 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 (number 23) permits disclosing information to the Department of Health and Human Services' Healthcare Integrity and Protection Data Base pursuant to Sec. 221(a), Pub. L. 104-191, and the associated Department of Health and Human Services regulations, 45 CFR part 61.

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Approved: July 12, 2000.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

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102VA05

SYSTEM NAME:

Agency-Initiated Personnel Actions (Title 38)-VA.

SYSTEM LOCATION:

All records related to Disciplinary Appeals Boards are maintained at VA Central Office, 810 Vermont Avenue, NW, Washington, DC 20420. All other records in this system are maintained at the Department of Veterans Affairs (VA) Central Office, 810 Vermont Avenue, NW, Washington, DC 20420 and/or VA field facilities.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

Current and former employees appointed under 38 U.S.C. 7306, 7401(1), or 7405(a)(1)(A), except those appointed on a without compensation basis. This includes employees such as physicians, dentists, podiatrists, optometrists, nurses, nurse anesthetists, physician assistants and expanded-function dental auxiliaries.

CATEGORIES OF RECORDS IN THE SYSTEM:

All categories of records may include identifying information, such as name, address, Social Security number, current position title, employing facility, and the employee's current grade, level, or step rate. This system contains supporting documentation related to processing actions covered by this system of records. This includes, as appropriate, designations of board members and employee representative, copies of the notice of proposed action, materials relied on by the Agency to support the reasons in the notice, replies by the employee, statements of witnesses, hearing notices, reports, related correspondence, and Agency decisions.

AUTHORITY FOR MAINTENACE OF THE SYSTEM:

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

PURPOSE(S):

These records document the processing of disciplinary and adverse actions, disqualification during probation, physical disqualification, agency-initiated disability retirements, and proposed separations based on pre-employment suitability.

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

1. 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.

2. 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, 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.

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

4. 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 any agency decision concerning the hiring or retention of an employee, the issuance of 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.

5. 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 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.

6. To disclose relevant information to Federal and 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.

7. To provide information to a congressional office from the records of Start Printed Page 46554an individual in response to an inquiry from the congressional office made at the request of the individual.

8. 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.

9. 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.

10. To disclose to persons engaged in research and survey projects information necessary to locate individuals for personnel research or survey response, and to produces summary descriptive statistics and analytical studies in support to 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.

11. 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.

12. 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 of entity responsible for managing the individual finances to the extent necessary to ensure payment of benefits to which the individual is entitled.

13. To disclose to the VA-appointed representative of an employee all notices, determination, decisions, or other written communications issues to the employee in connection with an examination ordered by the VA under fitness-for-duty examination procedures or Agency-filed disability retirement procedures.

14. 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.

15. 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.

16. To disclose information to the Federal Labor Relations Authority (including its General Counsel) when appropriate jurisdiction has been established and the information has been requested in connection with the investigation and resolution of allegations of unfair labor practices, 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 Service Impasses Panel.

17. Records from this system or 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 which maintains records concerning individuals' employment or practice histories or concerning the issuance, retention, or revocation of licenses or registration necessary to practice and occupation, profession or specialty, in order for the Agency to obtain information determined relevant to an Agency decision concerning the hiring, retention or termination of an employee or 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 private section patients.

18. 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.

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

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

21. Relevant information from this system of records may be disclosed to the National Practitioner Data Bank 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 licenses or certified health care practitioner: (1) On any payment in settlement (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 or more than 30 days.

22. 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.

23. 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 addeded 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 actiosn based on acts or omissions that either affected or could have affected the delivery of healthcare services. Start Printed Page 46555

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

STORAGE:

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

RETRIEVABILITY:

These records may be retrieved using various combinations of name, birth date, 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 the 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:

Records in this system are disposed of no sooner than 6 years after the closing of the case. Disposal is by shredding and erasure of tapes or disks.

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:

Except as indicated below (see Record Access Procedures), individuals receiving notice of a proposed action must be provided access to all documents supporting the notice. At any time thereafter, individuals subject to the action will be provided access to the record (see Record Access Procedures). Individuals should contact the human resources manager for the location where the action was processed regarding the existence of such records on them. However, all inquiries related to Disciplinary Appeals Boards should be directed to the Deputy Assistant Secretary for Human Resources Management (see System Manager). Individuals must furnish the following information for their records to be located and identified:

a. Name.

b. Date of birth.

c. Approximate date of closing of the case and kind of action taken.

d. If not the employee's current organization, the organizational component involved.

Requests for access must be consistent with the Privacy act and VA regulations concerning the release of information from Department of Veterans Affairs records other than claimant records. See 38 CFR 1.550, et seq.

RECORD ACCESS PROCEDURES:

Individuals against whom such actions are taken must be provided access to the record. However, after the action has been closed, individuals may request access to the official file by contacting the human resources manager for the location where the action was processed. If the action relates to a Disciplinary Appeals Board, the individual must request access from the Deputy Assistant Secretary for Human Resources Management (see System Manager). Individuals must furnish the following information for their records to be located and identified:

a. Name.

b. Date of birth.

c. Approximate date of closing of the case and kind of action taken.

d. If not the employee's current organization, the organizational component involved.

Requests for access must be consistent with the Privacy Act and VA regulations concerning the release of information from Department of Veterans Affairs records other than claimant records. See 38 CFR 1.550, et seq. Note 1: When a request for access involves medical or psychological records that the responsible individual believes require special handling, the requester should be advised that the material will be provided only to a physician designated by the data subject. Upon receipt of the designation and upon verification of the physician's identity, the records will be made available to the physician, who will have full authority to disclose those records to the data subject when appropriate.

CONTESTING RECORD PROCEDURES:

Review of requests from individuals seeking amendment of their records that have or could have been the subject of a judicial, quasi-judicial, or administrative action will be limited in scope. Review of amendment request of these records will be restricted to determining if the records accurately document the action on the case and will not include a review of the merits of the action, determination, or finding. Individuals wishing to request amendment of their records to correct factual errors should contact the human resources manager for the VA office where the action was processed. In cases concerning Disciplinary Appeals Boards, individuals should contact the Deputy Assistant Secretary for Human Resources Management (see System Manager) to request the amendment. Individuals must furnish the following information for their records to be located and identified:

a. Name.

b. Date of birth.

c. Approximate date of closing of the case and kind of action taken.

d. If not the individual's current organization, the organizational component involved.

RECORD SOURCE CATEGORIES:

Information in this system of records is provided:

a. By supervisors and managers.

b. By individual on whom the record is maintained.

c. By Professional Standards Boards and Disciplinary Appeals Boards.

d. By testimony of witnesses.

e. By other agency officials.

f. By other agency records.

g. From related correspondence or persons.

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[FR Doc. 00-19169 Filed 7-27-00; 8:45 am]

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