Chapter 3701-75 Accessing Confidential Personal Information
For the purposes of administrative rules promulgated in accordance with section 1347.15 of the Revised Code, the following definitions apply:
(A) "Access" as a noun means an instance of copying, viewing, or otherwise perceiving whereas "access" as a verb means to copy, view, or otherwise perceive.
(B) "Acquisition of a new computer system" means the purchase of a "computer system,"as defined in this rule, that is not a computer system currently in place nor one for which the acquisition process has been initiated as of the effective date of the agency rule addressing requirements in section 1347.15 of the Revised Code.
(C) "Computer system" means a "system," as defined by section 1347.01 of the Revised Code, that stores, maintains, or retrieves personal information using electronic data processing equipment.
(D) "Confidential personal information" (CPI) has the meaning as defined by division (A)(1) of section 1347.15 of the Revised Code and identified by rules promulgated by the agency in accordance with division (B)(3) of section 1347.15 of the Revised Code that reference the federal or state statutes or administrative rules that make personal information maintained by the agency confidential.
(E) "Employee of the state agency" means each employee of the state agency regardless of whether he/she holds elected or appointed office or position within the state agency. "Employee of the state agency" is limited to the specific employing state agency.
(F) "Incidental contact" means contact with the information that is secondary or tangential to the primary purpose of the activity that resulted in the contact.
(G) "Individual" means a natural person or the natural person's authorized representative, legal counsel, legal custodian, or legal guardian.
(H) "Information owner" means the individual appointed in accordance with division (A) of section 1347.05 of the Revised Code to be directly responsible for a system.
(I) "Person" means a natural person.
(J) "Personal information" has the same meaning as defined in division (E) of section 1347.01 of the Revised Code.
(K) "Personal information system" means a "system" that "maintains" "personal information" as those terms are defined in section 1347.01 of the Revised Code. "System" includes manual and computer systems.
(L) "Research" means a methodical investigation into a subject.
(M) "Routine" means commonplace, regular, habitual, or ordinary.
(N) "Routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person" as that phrase is used in division (F) of section 1347.01 of the Revised Code means personal information relating to employees and maintained by the agency for internal administrative and human resource purposes.
(O) "System" has the same meaning as defined by division (F) of section 1347.01 of the Revised Code.
(P) "Upgrade" means a substantial redesign of an existing computer system for the purpose of providing a substantial amount of new applications functionality, or application modifications that would involve substantial administrative or fiscal resources to implement, but would not include maintenance, minor updates and patches, or modifications that entail a limited addition of functionality due to changes in business or legal requirements.
For personal information systems, whether manual or computer systems, that contain confidential personal information, the agency shall do the following:
(A) Criteria for accessing confidential personal information. Personal information systems of the agency are managed on a "need-to-know" basis whereby the information owner determines the level of access required for an employee of the agency to fulfill his/her job duties. The determination of access to confidential personal information shall be approved by the employee's supervisor and the information owner prior to providing the employee with access to confidential personal information within a personal information system. The agency shall establish procedures for determining a revision to an employee's access to confidential personal information upon a change to that employee's job duties including, but not limited to, transfer or termination. Whenever an employee's job duties no longer require access to confidential personal information in a personal information system, the employee's access to confidential personal information shall be removed.
(B) Individual's request for a list of confidential personal information. Upon the signed written request of any individual for a list of confidential personal information about the individual maintained by the agency, the agency shall do all of the following:
(1) Verify the identity of the individual by a method that provides safeguards commensurate with the risk associated with the confidential personal information;
(2) Provide to the individual the list of confidential personal information that does not relate to an investigation about the individual or is otherwise not excluded from the scope of Chapter 1347. of the Revised Code; and
(3) If all information relates to an investigation about the individual, inform the individual that the agency has no confidential personal information about the individual that is responsive to the individual's request.
(C) Notice of invalid access.
(1) Upon discovery or notification that confidential personal information of a person has been accessed by an employee for an invalid reason, the agency shall notify the person whose information was invalidly accessed as soon as practical and to the extent known at the time. However, the agency shall delay notification for a period of time necessary to ensure that the notification would not delay or impede an investigation or jeopardize homeland or national security. Additionally, the agency may delay the notification consistent with any measures necessary to determine the scope of the invalid access, including which individuals' confidential personal information invalidly was accessed, and to restore the reasonable integrity of the system.
"Investigation" as used in this paragraph means the investigation of the circumstances and involvement of an employee surrounding the invalid access of the confidential personal information. Once the agency determines that notification would not delay or impede an information made for an invalid reason to the person.
(2) Notification provided by the agency shall inform the person of the type of confidential personal information accessed and the date(s) of the invalid access.
(3) Notification may be made by any method reasonably designed to accurately inform the person of the invalid access, including written, electronic, or telephone notice.
(D) Appointment of a data privacy point of contact. The agency director shall designate an employee of the agency to serve as the data privacy point of contact. The data privacy point of contact shall work with the chief privacy officer within the office of information technology to assist the agency with both the implementation of privacy protections for the confidential personal information that the agency maintains and compliance with section 1347.15 of the Revised Code and the rules adopted pursuant to the authority provided by that chapter.
(E) Completion of a privacy impact assessment. The agency director shall designate an employee of the agency to serve as the data privacy point of contact who shall timely complete the privacy impact assessment form developed by the office of information technology.
Pursuant to the requirements of division (B)(2) of section 1347.15 of the Revised Code, this rule contains a list of valid reasons, directly related to the Ohio department of health's exercise of its powers or duties, for which only employees of the agency may access confidential personal information (CPI) regardless of the whether the personal information system is a manual system or computer system:
(A) Performing the following functions constitute valid reasons for authorized employees of the agency to access confidential personal information:
(1) Responding to a public records request;
(2) Responding to a request from an individual for the list of CPI the agency maintains on that individual;
(3) Administering a constitutional provision or duty;
(4) Administering a statutory provision or duty;
(5) Administering an administrative rule provision or duty;
(6) Complying with any state or federal program requirements;
(7) Processing or payment of claims or otherwise administering a program with individual participants or beneficiaries;
(8) Auditing purposes;
(9) Licensure (or permit, eligibility, filing, etc.) processes;
(10) Investigation or law enforcement purposes;
(11) Administrative hearings;
(12) Litigation, complying with an order of the court, or subpoena;
(13) Human resource matters (e.g., hiring, promotion, demotion, discharge, salary/compensation issues, leave requests/issues, time card approvals/issues);
(14) Complying with an executive order or policy;
(15) Complying with an agency policy or a state administrative policy issued by the department of administrative services, the office of budget and management or other similar state agency; or
(16) Complying with a collective bargaining agreement provision.
(B) To the extent the general processes described in paragraph (A) of this rule do not cover the circumstances under consideration, for the purpose of carrying out specific duties of the Ohio department of health, authorized employees would also have valid reasons for accessing CPI as set forth in any applicable policy adopted by the department of health.
The following federal statutes or regulations or state statutes and administrative rules make personal information maintained by the agency confidential and identify the confidential personal information within the scope of rules promulgated by this agency in accordance with section 1347.15 of the Revised Code:
(A) Certain matters dealing with children with medical handicaps: section 3701.028 of the Revised Code.
(C) Protected health information: section 3701.17 of the Revised Code.
(D) Information related to testing for the human immunodeficiency virus ("HIV"), acquired immunodeficiency syndrome ("AIDS"), and AIDS-related condition: section 3701.243 for the Revised Code.
(E) Identifying quality-of-care data: section 3702.18 of the Revised Code.
(H) Information for medical or health use only of a birth record: section 3705.23 of the Revised Code.
(I) Criminal record check related to hospice care workers: section 3712.09 of the Revised Code.
(J) The identity of or information that would tend to identify any patient or resident of a home, complainant, or any person who provided information regarding an investigation of a home: section 3721.031 of the Revised Code.
(K) Criminal record check related to long-term care workers: section 3721.121 of the Revised Code.
(L) The identity of or information that would tend to identify any complainant, or any person who provided information regarding an investigation of abuse, neglect, or misapropriation in a long-term care or residential care facility: section 3721.25 of the Revised Code.
(M) The identity of any person who makes a report of a violation related to an adult care facility: section 3722.17 of the Revised Code.
(N) Criminal record check related to an adult care facility worker: section 3722.151 of the Revised Code.
(O) Criminal background check of a home health agency worker: section 3701.881 of the Revised Code.
(P) The name of a complainant concerning any radon tester, mitigation specialist, mitigation contractor, or operator of a radon laboratory or an approved training course: section 3723.10 of the Revised Code.
(Q) The name of a complainant concerning a lead inspector, a lead abatement contractor, a lead risk assessor, a lead abatement project designer, a lead abatement worker, a clearance technician, a clinical laboratory, an environmental lead analytical laboratory, or a training course: section 3742.15 of the Revised Code.
(R) Information concerning lead that is reported and are medical records: section 3742.03 of the Revised Code.
(S) Information related to the "Help Me Grow" program as subject to the "Family Education Rights and Privacy Act": 20 U.S.C. 1232g, 45 C.F.R. part 99, subpart D, 20 U.S.C. 1400, et. seq., 34 C.F.R. 383.460, rule 3701-8-09 of the Administrative Code.
(T) Protected health information related to covered functions of the agency related to the "Health Insurance Portability and Accountability Act of 1996" ("HIPAA"): 42 U.S.C. 1302(a), 42 U.S.C. 1320d through 1320d-8, 45 C .F.R. parts 160 and 164.
(U) Applicant, participant, and vendor information related to the "Women, Infants, and Children ("WIC")" and "Farmer's Market" programs: 42 U.S.C. 1786, et seq., 7 C.F.R. 246.26.
(V) Records and documents relating to certifications, recertifications or medical histories of employees or employees' family members created for "Family Medical Leave Act" ("FMLA") purposes: 29 CFR 825.500.
(W) Information obtained for purposes of the "American with Disabilities Act("ADA"), as amended by ADA Amendments Act of 2008" or of the "Rehabilitation Act of 1973" regarding the medical condition or history of an applicant or employee: 29 CFR 1630.14.
(X) Certain data contained in the "Automated Survey Processing Environment" ("ASPEN") and "Automated Complaint/Incidents Tracking" ("ACTS") system of records for health care facilities certified for medicare or medicaid: 45 CFR Part 5b.
For personal information systems that are computer systems and contain confidential personal information, the agency shall do the following:
(A) Access restrictions. Access to confidential personal information that is kept electronically shall require a password or other authentication measure.
(B) Acquisition of a new computer system. When the agency acquires a new computer system that stores, manages or contains confidential personal information, the agency shall include a mechanism for recording specific access by employees of the agency to confidential personal information in the system.
(C) Upgrading existing computer systems. When the agency modifies an existing computer system that stores, manages or contains confidential personal information, the agency shall make a determination whether the modification constitutes an upgrade. Any upgrades to a computer system shall include a mechanism for recording specific access by employees of the agency to confidential personal information in the system.
(D) Logging requirements regarding confidential personal information in existing computer systems:
(1) The agency shall require employees of the agency who access confidential personal information within computer systems to maintain a log that records that access.
(2) Access to confidential personal information is not required to be entered into the log under the following circumstances:
(a) The employee of the agency is accessing confidential personal information for official agency purposes, including research, and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.
(b) The employee of the agency is accessing confidential personal information for routine office procedures and the access is not specifically directed toward a specifically named individual or group of specifically named individuals.
(c) The employee of the agency comes into incidental contact with confidential personal information and the access of the information is not specifically directed toward a specifically named individual or a group of specifically named individuals.
(d) The employee of the agency accesses confidential personal information about an individual based upon a request made under either of the following circumstances:
(i) The individual requests confidential personal information about himself/herself.
(ii) The individual makes a request that the agency takes some action on that individual's behalf and accessing the confidential personal information is required in order to consider or process that request.
(3) For purposes of this paragraph, the agency may choose the form or forms of logging, whether in electronic or paper formats.
(E) Log management. The agency shall issue a policy that specifies the following:
(1) Who shall maintain the log;
(2) What information shall be captured in the log;
(3) How the log is to be stored; and
(4) How long information kept in the log is to be retained.
Nothing in this rule limits the agency from requiring logging in any circumstance that it deems necessary.