HHS Proposes Rule Exempting Record System from Certain Privacy Act Provisions

On Wednesday, the Department of Health and Human Services filed a notice of a proposed rule that would make confidential source-identifying information in records maintained by the National Institutes of Health (NIH) exempt from certain Privacy Act requirements.

The rule would affect the NIH Office of Loan Repayment and Scholarship Record System, which contains information about health professionals who apply for student loan repayment of qualified debt. The system also contains information about the peer reviewers, referees, and recommenders involved in selecting eligible applicants.

Because this system of records “contain(s) information not only about applicants, but also about the reviewers, the proposed exemptions are necessary to enable NIH to prevent applicants from having access to information about the identity of individuals who provided NIH with an expert review or referee report under an express promise of confidentiality,” the proposed rulemaking states. The peer review process depends on “accurate, objective, and unbiased recommendations and evaluations from reviewers about loan repayment applications,” and the proposed exemptions would protect reviewers’ identities, thus protecting them from “harassment, intimidation, and other attempts to improperly influence award outcomes.”

Particularly, the rule would exempt the records system from Privacy Act provisions “(c)(3), pertaining to the accounting of disclosures, and (d)(1) through (d)(4), pertaining to access, amendment, and notification provisions, based on subsection (k)(5),” according to the proposal. The proposed rulemaking noted that “(t)he exemption applies only to the extent that a disclosure would reveal the identity of the reviewer or referee who furnished information to the Government under an express promise that his or her identity would be held in confidence.”

The agency asks for electronic or written comments on the proposed rule by March 15.