Comment: A few comments opposed the NPRM's provision allowing the Department of State to use protected health information for medical clearance determinations. These commenters believed that the scope of permissible disclosures under the proposed provision was too broad. While acknowledging that the Department may have legitimate needs for access to protected health data, the commenters believed that implementation of the proposed provision would not have provided adequate procedural safeguards for the affected State Department employees. A few comments said that the State Department should be able to obtain protected health information for medical clearance determinations only with authorization. A few comments also said that the Department should be able to disclose such information only when required for national security purposes. Some commenters believed that the State Department should be subject to the Federal Register notice requirement that the NPRM would have applied to the Department of Defense. A few comments also opposed the proposed provision on the basis that it would conflict with the Rehabilitation Act of 1973 or that it appeared to represent an invitation to discriminate against individuals with mental disorders.
Response: We agree with commenters who believed that the NPRM's provision regarding the State Department's use of protected health information without authorization was unnecessarily broad. Therefore, in the final rule, we restrict significantly the scope of protected health information that the State Department may use and disclose without authorization. First, we allow health plans and covered health care providers that are a component of the State Department to use and disclose protected health information without authorization when making medical suitability determinations for security clearance purposes. For the purposes of a security investigation, these components may disclose to authorized State Department officials whether or not the individual was determined to be medically suitable. Furthermore, we note that the rule does not confer authority on the Department to disclose such information that it did not previously possess. The Department remains subject to applicable law regarding such disclosures, including the Rehabilitation Act of 1973.
The preamble to the NPRM solicited comment on whether there was a need to add national security determinations under Executive Order 10450 to the rule's provision on State Department uses and disclosures of protected health information for security determinations. While we did not receive comment on this issue, we believe that a limited addition is warranted and appropriate. Executive Orders 10450 and 12968 direct Executive branch agencies to make certain determinations regarding whether their employees' access to classified information is consistent with the national security interests of the United States. Specifically, the Executive Orders state that access to classified information shall be granted only to those individuals whose personal and professional history affirmatively indicates, inter alia, strength of character, trustworthiness, reliability, and sound judgment. In reviewing the personal history of an individual, Executive branch agencies may investigate and consider any matter, including a mental health issue or other medical condition, that relates directly to any of the enumerated factors.
In the vast majority of cases, Executive agencies require their security clearance investigators to obtain the individual's express consent in the form of a medical release, pursuant to which the agency can conduct its background investigation and obtain any necessary health information. This rule does not interfere with agencies' ability to require medical releases for purposes of security clearances under these Executive Orders.
In the case of the Department of State, however, it may be impracticable or infeasible to obtain an employee's authorization when exigent circumstances arise overseas. For example, when a Foreign Service Officer is serving at an overseas post and he or she develops a critical medical problem which may or may not require a medical evacuation or other equally severe response, the Department's medical staff have access to the employee's medical records for the purpose of making a medical suitability determination under Executive Orders 10450 and 12968. To restrict the Department's access to information at such a crucial time due to a lack of employee authorization leaves the Department no option but to suspend the employee's security clearance. This action automatically would result in an immediate forced departure from post, which negatively would affect both the Department, due to the unexpected loss of personnel, and the individual, due to the fact that a forced departure can have a long-term impact on his or her career in the Foreign Service.
For this reason, the rule contains a limited security clearance exemption for the Department of State. The exemption allows the Department's own medical staff to continue to have access to an employee's medical file for the purpose of making a medical suitability determination for security purposes. The medical staff can convey a simple "yes" or "no" response to those individuals conducting the security investigation within the Department. In this way, the Department is able to make security determinations in exigent circumstances without disclosing any specific medical information to any employees other than the medical personnel who otherwise have routine access to these same medical records in an everyday non-security context.
Second, and similarly, the final rule establishes a similar system for disclosures of protected health information necessary to determine worldwide availability or availability for mandatory service abroad under Sections 101(a)(4) and 504 of the Foreign Service Act. The Act requires that Foreign Service members be suitable for posting throughout the world and for certain specific assignments. For this reason, we permit a limited exemption to serve the purposes of the statute. Again, the medical staff can convey availability determinations to State Department officials who need to know if certain Foreign Service members are available to serve at post.
Third, and finally, the final rule recognizes the special statutory obligations that the State Department has regarding family members of Foreign Service members under Sections 101(b)(5) and 904 of the Foreign Service Act. Section 101(b)(5) of the Foreign Service Act requires the Department of State to mitigate the impact of hardships, disruptions, and other unusual conditions on families of Foreign Service Officers. Section 904 requires the Department to establish a health care program to promote and maintain the physical and mental health of Foreign Service member family members. The final rule permits disclosure of protected health information to officials who need protected health information to determine whether a family member can accompany a Foreign Service member abroad.
Given the limited applicability of the rule, we believe it is not necessary for the State Department to publish a notice in the Federal Register to identify the purposes for which the information may be used or disclosed. The final rule identifies these purposes, as described above.