Proposed Standards for Privacy and Individually Identifiable Health Information

c. Application to the Department of State.

We propose to permit the Department of State to use and disclose protected health information for certain purposes unrelated to its role as a health care provider but necessary for the achievement of its mission.

i. Importance of Foreign Service determinations and the need for protected health information.

The Secretary of State administers and directs the Foreign Service. As contemplated in the Foreign Service Act, the Foreign Service is “to serve effectively the interests of the United States” and “provide the highest caliber of representation in the conduct of foreign affairs;” members of the Foreign Service are to be available to serve in assignments throughout the world. As called for under the Foreign Service Act, the DOS has established a health care program to promote and maintain the physical and mental health of members of the Service and that of other Government employees serving abroad under chief of mission authority, as well as accompanying family members. The DOS provides health care services to thousands of Foreign Service officers, other government employees and their families serving abroad, many of whom are frequently changing posts or assignments.

Worldwide availability for service is a criterion for entrance into the Foreign Service, so that applicants with conditional offers of employment must undergo medical clearance examinations to establish their physical fitness to serve in the Foreign Service on a worldwide basis prior to entrance into the Foreign Service. Employees and accompanying family members also must be medically cleared before assignments overseas, to preclude assignment to posts where existing medical conditions would be exacerbated or where resources to support an existing medical condition are inadequate.

The DOS uses protected health information gained through its role as a health care provider to fulfill its other responsibilities. The information is used to make medical clearance and fitness decisions as well as other types of determinations requiring medical information (such as fitness for duty or eligibility for disability retirement of Foreign Service members). Such information is also used to determine whether to immediately evacuate an individual for evaluation or treatment, or to determine whether to allow an employee or family member to remain in a position or at post abroad. An individual’s record can include medical information provided to the DOS with the individual’s authorization by outside health care providers, protected health information about treatment provided or paid for by the DOS, and medical information collected from non- treatment processes such as the clearance process.

ii. Proposed requirements.

We are proposing to exempt the DOS from the requirement to obtain individual authorization (§ 164.508) in order to use or disclose protected health information maintained by its health care program in certain cases. Specifically, the exemption would apply to the disclosure or use of protected health information of the following individuals for the following purposes:

(1) of applicants to the Foreign Service for medical clearance determinations of physical fitness to serve in the Foreign Service on a worldwide basis, including: medical and mental conditions limiting assignability abroad; conformance to occupational physical standards, where applicable; and suitability;

(2) of members of the Foreign Service and other United States Government employees assigned to serve abroad under Chief of Mission authority, for (a) medical clearance determinations for assignment to posts abroad, including: medical and mental conditions limiting such assignment; conformance to occupational physical standards, where applicable; continued fitness for duty, suitability, and continuation of service at post (including decisions on curtailment); (b) separation medical examinations; and (c) determinations of eligibility of members of the Foreign Service for disability retirement (whether on application of the employee or the Secretary);

(3) of eligible family members of Foreign Service or other United States Government employees, for medical clearance determinations like those described in (2) above to permit such family members to accompany employees to posts abroad on Government orders, as well as determinations regarding family members remaining at post and separation medical examinations.

The proposed exemption is intended to maintain the DOS’s procedures regarding internal of medical information in conformance with the Privacy Act of 1974, as amended, and 42 CFR Part 2, which would continue to apply to the DOS. The verification requirements of § 164.518(c) would apply to these disclosures.

The DOS is considering the need to add national security determinations under Executive Order 10450, as amended, and other suitability determinations to the exempted purposes listed above. We therefore request comment as to the purposes for which use or disclosure of protected health information without individual authorization by the DOS would be appropriate.

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