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Notice

Privacy Act of 1974; Department of Homeland Security U.S. Immigration and Customs Enforcement-013 Alien Medical Records System of Records

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Information about this document as published in the Federal Register.

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AGENCY:

Privacy Office, DHS.

ACTION:

Notice of Privacy Act system of records.

SUMMARY:

In accordance with the Privacy Act of 1974 the Department of Homeland Security proposes to establish a new Department of Homeland Security U.S. Immigration and Customs Enforcement system of records notice titled, Department of Homeland Security U.S. Immigration and Customs Enforcement—013 Alien Medical Records System of Records. This system maintains records that document the medical screening, examination, and treatment of aliens arrested and detained by U.S. Immigration and Customs Enforcement for violations of the Immigration and Nationality Act. The records contain the medical information for aliens detained in facilities owned and operated by U.S. Immigration and Customs Enforcement or its contractors, or in facilities where medical care is provided by Department of Health and Human Services Public Health Service Commissioned Corps Officers. The system also supports the collection and maintenance of medical information about these individuals and its dissemination in the case of infectious diseases, especially in the event of a public health emergency, such as an epidemic or pandemic. The information described in this notice was previously covered by a Department of Health and Human Services Patients Medical Record system of records. This newly established system will be included in the Department of Homeland Security's inventory of record systems.

DATES:

Submit comments on or before December 9, 2009. This new system will be effective December 9, 2009.

ADDRESSES:

You may submit comments, identified by docket number DHS-2009-0126 by one of the following methods:

  • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • Fax: 703-483-2999.
  • Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
  • Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
  • Docket: For access to the docket to read background documents or comments received go to http://www.regulations.gov.
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FOR FURTHER INFORMATION CONTACT:

For general questions please contact: Lyn Rahilly (202-732-3300), Privacy Officer, U.S. Immigration and Customs Enforcement. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.

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SUPPLEMENTARY INFORMATION:

I. Background

The Alien Medical Records system of records is maintained by the Department of Homeland Security (DHS) U.S. Immigration and Customs Enforcement (ICE) Division of Immigration Health Services (DIHS), a division within the Office of Detention and Removal Operations (DRO). As noted above, the information described in this notice was previously covered by the Department of Health and Human Services (HHS) 9-15-0002 Patients Medical Record System Public Health Service Hospitals HHS/HRSA/BPHC System of Records (August 3, 2009, 74 FR 38456). This system of records maintains medical, mental health, and dental records that document the medical screening, examination, and treatment of aliens whom ICE arrests and detains for violations of the Immigration and Nationality Act (INA). The records contain the medical information for aliens detained in facilities owned and operated by ICE or its contractors, or in other facilities for ICE detainees where medical care is provided by ICE DIHS. It also maintains information about prisoners of the U.S. Marshals Service (USMS) who are housed in a detention facility operated by or on behalf of ICE pursuant to an agreement between the USMS and ICE. The system of records also supports the dissemination of medical information about these individuals in the case of infectious diseases especially in the event of a public health emergency, such as an epidemic or pandemic.

Before October 1, 2007, DHS and HHS maintained annual interagency agreements through which ICE DIHS, a component of HHS's Health Resources and Services Administration (HRSA), provided health care for ICE detainees. Medical records created by HRSA in providing those services were covered under a HHS Privacy Act system of records notice titled HHS 9-15-0002 Patients Medical Record System Public Health Service Hospitals HHS/HRSA/BPHC System of Records (August 3, 2009, 74 FR 38456). On August 23, 2007, a new agreement between DHS and HHS was signed to facilitate the transfer of the Federal detainee health care program responsibilities from HHS to DHS and detailed Public Health Service Commissioned Corps Officers to DHS on an open-ended basis to provide medical care for ICE detainees. HRSA has disbanded its DIHS, and ICE has Start Printed Page 57689created a component within its DRO known as DIHS. ICE's DIHS now provides health services to ICE detainees through the detailed Public Health Service Commissioned Corps Officers from HHS and through other contracted medical professionals. With the transfer of this function, ICE now owns the medical records created by DIHS personnel and contracted medical professionals. This transfer of record ownership requires that ICE publish this system of records notice under the Privacy Act describing for the public the medical records it owns and maintains.

The medical services provided to ICE detainees include medical, mental health, and dental care. If a detainee needs care that the medical staff in the detention facility cannot provide, such as meeting with a specialist or receiving a medical procedure in a hospital or in an in-patient or out-patient facility, the medical staff makes arrangements to procure the consultation, treatment, or procedure. For each category of individuals described in this notice, ICE maintains medical records that document the person's health, including symptoms, diseases and conditions, treatments received, and medications prescribed. This information is typically shared with other health care providers to ensure continuity of care. For individuals with infectious diseases of public health significance, this information may be shared with public health officials in order to prevent exposure to or transmission of the disease.

Consistent with DHS's information sharing mission, information stored in the DHS/ICE-013 Alien Medical Records System of Records may be shared with other DHS components, as well as appropriate Federal, State, local, tribal, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out the purposes of this system of records, including the medical treatment and removal of detainees from the United States.

It is important to note that DHS/ICE/DIHS is not subject to the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulation, “Standards for Privacy of Individually Identifiable Health Information” (Privacy Rule), 45 CFR Parts 160 and 164. DHS/ICE/DIHS does not meet the statutory definition of a covered plan under HIPAA, 42 U.S.C. 1320d(5), and is specifically carved out of the application of HIPAA as a “government funded program whose principal activity is the direct provision of healthcare to persons.” 45 CFR 160.103 (definition of a health plan). Because DHS/ICE/DIHS is not a covered entity, the restrictions proscribed by the HIPAA Privacy Rule are not applicable.

II. Privacy Act

The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR Part 5.

The Privacy Act requires each agency to publish in the Federal Register a description denoting the type and character of each system of records that the agency maintains, and the routine uses that are contained in each system in order to make agency recordkeeping practices transparent, to notify individuals regarding the uses to which their records are put, and to assist individuals to more easily find such files within the agency. Below is the description of the DHS/ICE-013 Alien Medical Records System of Records.

In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.

SYSTEM OF RECORDS

DHS/ICE—013

System name:

Immigration and Customs Enforcement Alien Medical Records System

Security classification:

Unclassified and for official use only.

System location:

Records are maintained at detention facilities operated by and on behalf of ICE, at certain Intergovernmental Service Agreement (IGSA) facilities operated by and on behalf of State and local governments with whom ICE has an agreement, at ICE Headquarters in Washington, DC, and at ICE field offices. (Note: IGSA facilities are city, county, or State-owned facilities where ICE contracts for detention, staging, and/or holding services, or leases bed space.)

Categories of individuals covered by the system:

The categories of individuals covered by this system are primarily aliens arrested by ICE for administrative violations of the Immigration and Nationality Act (INA). These aliens have been booked into a detention facility owned and operated by ICE or ICE contractors, or into a facility where medical care is provided by ICE DIHS. ICE also maintains information about prisoners in the custody of the USMS who are being detained in facilities operated by or on behalf of ICE pursuant to an agreement between the USMS and ICE. Hereafter, the term “in ICE custody” will be used to refer to both aliens arrested by ICE and USMS prisoners being housed in a detention facility operated by or on behalf of ICE.

Categories of records in the system:

Categories of records in this system include:

  • Individual's name and aliases;
  • Date of birth;
  • Alien Registration Number (A-Number);
  • Federal Bureau of Prisons Number (if applicable);
  • Phone numbers;
  • Email addresses;
  • Addresses;
  • Country of Origin;
  • Nationality;
  • Gender;
  • Languages spoken;
  • Medical history (self and family to establish medical history);
  • Current medical conditions;
  • Symptoms reported, including dates;
  • Medical examination records and medical notes;
  • Diagnostic data, such as tests ordered and test results;
  • Problem list which lists all the diagnoses and medical symptoms or problems for an individual as determined by a medical practitioner or reported by the person;
  • Refusal forms;
  • Informed consent forms;
  • Treatment records and medical treatment plans;
  • Mental health records and mental health treatment plans;Start Printed Page 57690
  • Prescription drug records;
  • Over-the-counter drug records;
  • Records concerning the diagnosis and treatment of diseases or conditions that present a public health threat, including information about exposure of other individuals and reports to public health authorities;
  • Dental history and records, including x-rays, treatment, and procedure records;
  • Correspondence related to an individual's medical or dental care;
  • Physician or other medical/dental provider's name and credentials such as medical doctor, registered nurse, and Doctor of Dental Science;
  • Legal documents, such as death certificate, do-not-resuscitate order, or advance directive (e.g., living will);
  • Device identifiers, such as hearing aids and pacemakers;
  • Information about special needs and accommodations for an individual with disabilities, such as requiring a cane, wheelchair, special shoes, or needing to sleep on a bottom bunk; and
  • Off-site care records (emergency room, hospitalizations, specialized care, records of previous medical care or testing)

Authority for maintenance of the system:

Public L. 110-329, 122 Stat. 3574, 3658 (2008); 5 U.S.C. 301; 44 U.S.C. 3101; 8 U.S.C. 1103, § 1222 and 1231; 42 U.S.C. 249. Note: The Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-191, as amended, does not apply to the health information maintained in this system of records.

Purpose(s):

The purpose of this system is to document and facilitate the providing of medical, dental, and mental health care to individuals in ICE custody in facilities owned and operated by ICE or its contractors, or in other facilities where medical care is provided by HHS Public Health Service Commissioned Corps Officers. The system also supports the collection, maintenance, and sharing of medical information for these individuals in the interest of public health especially in the event of a public health emergency, such as an epidemic or pandemic.

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 outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

A. To the Department of Justice (including United States Attorney Offices) or other Federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:

1. DHS or any component thereof;

2. Any employee of DHS, or HHS employee detailed to DHS, in his/her official capacity;

3. Any employee of DHS, or HHS employee detailed to DHS, in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or

4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.

B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.

C. To the National Archives and Records Administration or other Federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.

D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.

E. To appropriate agencies, entities, and persons when:

1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;

2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual that relies upon the compromised information; and

3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.

G. To an appropriate Federal, State, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.

H. To hospitals, physicians, medical laboratories and testing facilities, and other medical service providers, for the purpose of diagnosing and treating medical conditions or arranging the care of individuals in ICE custody and of individuals released or about to be released from ICE custody including, but not limited to, released under an order of supervision, on their own recognizance, on bond, on parole, or in an alternative to detention program.

I. To an actual or potential party or his or her attorney for the purpose of negotiation or discussion on such matters as settlement of the case or matter, or informal discovery proceedings.

J. To foreign governments for the purpose of coordinating and conducting the removal or return of aliens from the United States to other nations when disclosure of information about the alien's health is necessary or advisable to safeguard the public health, to facilitate transportation of the alien, to obtain travel documents for the alien, to ensure continuity of medical care for the alien, or is otherwise required by international agreement or law.

K. To immediate family members and attorneys or other agents acting on behalf of an alien to assist those individuals in determining the current medical condition of an alien in ICE custody provided they can present adequate verification of a familial or agency relationship with the alien.

L. To appropriate Federal, State, local, tribal, or foreign governmental agencies or multilateral governmental organizations for the purpose of protecting the vital interests of a data subject or other persons, including to assist such agencies or organizations in Start Printed Page 57691preventing exposure to or transmission of a communicable or quarantinable disease or to combat other significant public health threats.

M. To hospitals, physicians, and other healthcare providers for the purpose of protecting the health and safety of individuals who may have been exposed to a contagion or biohazard, and to assist such persons or organizations in preventing exposure to or transmission of a communicable or quarantinable disease or to combat other significant public health threats.

N. To the U.S. Marshals Service (USMS) concerning USMS prisoners that are or will be held in detention facilities operated by or on behalf of ICE, and to Federal, State, or local law enforcement or correctional agencies concerning an individual in ICE custody that is to be transferred to such agency's custody, in order to coordinate the transportation, custody, and care of these individuals.

O. To third parties to facilitate placement or release of an alien (e.g., at a group home, homeless shelter, etc.) who has been or is about to be released from ICE custody, but only such information that is relevant and necessary to arrange housing or continuing medical care for the alien.

P. To appropriate State, local, or tribal agency or other appropriate authority for the purpose of providing information about an alien who has been or is about to be released from ICE custody who, due to a condition such as mental illness, may pose a health or safety risk to himself/herself or to the community. ICE will only disclose health information about the individual that is relevant to the health or safety risk they may pose and/or the means to mitigate that risk (e.g., the alien's need to remain on certain medication for a serious mental health condition).

Q. To appropriate State, local, or tribal agency or other appropriate authority for the purpose of reporting vital statistics (e.g., births, deaths).

R. To the U.S. Bureau of Prisons and other government agencies for the purpose of providing medical information about an alien when custody of the alien is being transferred from ICE to the other agency. This will include the transfer of information about unaccompanied minor children to the U.S. Department of Health and Human Services.

S. To individuals for the purpose of determining if they have had contact in a custodial setting with a person known or suspected to have a communicable or quarantinable disease and to identify and protect the health and safety of others who may have been exposed.

T. To a public or professional licensing organization when such information indicates, either by itself or in combination with other information, a violation or potential violation of professional standards, or reflects on the moral, educational, or professional qualifications of an individual who is licensed or is seeking to become licensed.

U. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.

Disclosure to consumer reporting agencies:

None.

Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:

Storage:

Records in this system are stored electronically and/or on paper in secure facilities behind a locked door. Electronic records are stored on magnetic disc, tape, digital media, and CD-ROM.

Retrievability:

Records may be retrieved by name, Alien Registration Number (A-Number), or Bureau of Prisons Number.

Safeguards:

Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer systems containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.

Retention and disposal:

ICE is in the process of working with its Records Office to draft a proposed record retention schedule for the various records associated with the records described in this notice. ICE anticipates that:

(1) Medical records will be retained for ten (10) years after an individual has been released from ICE custody and then shall be destroyed;

(2) annual data on detainees who have died in ICE custody that has been transferred to the Bureau of Justice Statistics (BJS) and annual reports regarding other infectious diseases will be retained for ten (10) years and then destroyed;

(3) various statistical reports will be retained permanently by NARA; and

(4) monthly and annual statistical reports including those regarding workload operations will be destroyed when no longer needed for business purposes.

System Manager and address:

Director, Division of Immigration Health Services, Detainee Health Care Unit, Detention and Removal Operations, U.S. Immigration and Customs Enforcement, 1220 L Street, NW., Suite 500, Washington, DC 20005.

Notification procedure:

Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the U.S. Immigration and Customs Enforcement FOIA Officer, whose contact information can be found at http://www.dhs.gov/​foia under “contacts.” If an individual believes more than one component maintains Privacy Act records concerning him or her, the individual may submit the request to the Chief Privacy Officer and Chief Freedom of Information Act Officer, Department of Homeland Security, 245 Murray Drive, SW., Building 410, STOP-0655, Washington, DC 20528.

When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address, and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer, http://www.dhs.gov or 1-866-431-0486. In addition you should provide the following:Start Printed Page 57692

  • An explanation of why you believe the Department would have information on you;
  • Identify which component(s) of the Department you believe may have the information about you;
  • Specify when you believe the records would have been created;
  • Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
  • If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.

Without this bulleted information, the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.

Record access procedures:

See “Notification procedure” above. In addition, individuals in ICE-owned facilities or in contract detention facilities operated on behalf of ICE may request access to their records by making a request to the facility's health care unit. Specifically, individuals should submit a Form G-639, Freedom of Information/Privacy Act Request form, to any staff member.

ICE also detains individuals in Intergovernmental Service Agreement (IGSA) facilities. These facilities are city, county, or State-owned and operated facilities where ICE contracts for detention services or leases bed space. There is no set procedure for how individuals in the IGSA facilities request access to their records. Each facility has its own process. Persons seeking such information should contact the chief administrative officer of such facility for guidance.

Contesting record procedures:

See “Notification procedure” above.

Record source categories:

Information may be obtained from the individual, immediate family members, physicians, nurses, dentists, medical laboratories and testing facilities, hospitals, other medical and dental care providers, other law enforcement or custodial agencies, and public health agencies.

Exemptions claimed for the system:

None.

Start Signature

Dated: November 2, 2009.

Mary Ellen Callahan,

Chief Privacy Officer, Department of Homeland Security.

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[FR Doc. E9-26910 Filed 11-6-09; 8:45 am]

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