2.0 Confidentiality

Table of Contents

Policy
1.0 Summary
2.0 Definitions
3.0 Exceptions

Reference:

34 CFR § 361.5(5); 34 CFR § 361.38

42 CFR § Part 2

45 CFR § 164.508

AS 23.15.190

AS 47.17.020

8 AAC 98.510 - 8 AAC 98.550

Code of Professional Ethics for Rehabilitation Counselors from the Commission on Rehabilitation Counselor Certification

Effective: October 1, 2021

Revised:

Duane Mayes signature

Approved: ____________________________________ Date: 10/01/2021

Duane G. Mayes, Director

Policy

The Alaska Division of Vocational Rehabilitation (ADVR) regards the protection of an individual’s confidentiality as one of the Division’s greatest responsibilities, and is bound by both Federal and State law to safeguard the confidentiality of the individuals participating in the ADVR program.

1.0 Summary

ADVR releases no personal information on individuals receiving Vocational Rehabilitation (VR) services without a current Release of Information (ROI) signed by the individual, their legal guardian, or a court-appointed representative of the individual, except in instances listed in subsequent sections of this policy.

All information acquired by ADVR must be used only for purposes directly connected with the administration of the VR program. Personal information may not be shared with advisory or other bodies that do not have responsibility for administration of the program, except as provided in this policy. Use, release, and obtaining of personal information by ADVR shall conform to applicable Federal and State laws and regulations.

ADVR employees may not remove an individual’s file from the office without supervisory written authorization.

1.1 Release to Applicants and Recipients of Services

ADVR will make the information in the case record available to the individual, their representative, or their legal guardian upon receiving a written request and a completed ADVR ROI.

All requested information in the case record shall be made available, except:

Information that the VR Counselor determines may be harmful to the individual. This information will be released to a third party chosen by the individual. The third party may include a family member, an advocate, a qualified medical or mental health professional; unless a representative has been appointed by a court to represent the individual, in which case the information must be released directly to the court-appointed representative. ADVR can also pay for a qualified medical or mental health professional to interpret the information directly to the individual.
Medical or psychological records originally obtained from another agency or professional. This information may be released only by, or under conditions established by, that agency or professional.

ADVR will respond to an individual’s written request for information within ten business days after receipt of the request. One copy of the case record will be provided to the individual at no charge. Subsequent copies or copies provided to other entities may be provided at the rate of $0.25 per page.

1.2 Alteration of Case Records

An individual who believes their case record to be inaccurate or misleading may request, in writing, that the VR Counselor amends the information. ADVR employees cannot amend information written by another provider/agency. The VR Counselor has the choice of amending the ADVR portion of the case record. If the VR Counselor amends the record, they will case note the changes made. If the case record is not amended, the individual may request their own amending statement be inserted into the case record.

1.3 Release of Information to Other Programs or the Authorities

Except as otherwise noted in sections g, h, and i below, there must be an acceptable ROI completed, which must specifically and only identify ADVR as the source, and must specifically identify the recipient of the information. ADVR will honor ROIs which: meet federal or state legal requirements; are written in language that the individual or their representative understands; have beginning and ending dates indicating the length of time the release is in effect; are signed and dated by the individual or their representative; identify only ADVR as the agency authorized to use, disclose, or receive the information; identify the party to whom the information may be released; identify the specific information to be released; and identify the specific purpose(s) for which the information may be used.
The other agency must demonstrate on the Release of Information that the information requested is necessary for its program.
Medical or psychological information that the VR Counselor or VR Manager determines may be harmful to the individual may be released to the agency or organization only if the agency or organization assures ADVR that the information will be used only as intended and will not be released to the individual.
Medical or psychological records originally obtained from another agency, provider, or organization may be released only by, or under conditions established by, the original source of the information, such as prohibition of re-disclosure.
- Conditions of re-disclosure established by the original source must be adhered to, and if re-disclosure is allowable, the criteria for such re-disclosure must be met. This can include permission by the written consent of the individual whose information is being disclosed or as otherwise permitted by 42 CFR part 2.
- The confidentiality of records associated with alcohol and other drug (AOD) programs are further protected by Federal regulation 42 CFR Part 2. As recipients of AOD patient information, ADVR is subject to 42 CFR Part 2.
- ADVR’s ROI complies with the requirement of 42 CFR Part 2. Re-disclosure of AOD information is made only with a signed ROI by the individual, specifically indicating authorization to release AOD information, and according to parameters set by the originator of those records. Penalties associated with the misuse of AOD information are $500 for the first violation and up to $5,000 for each subsequent offense.
Under no circumstances will verbal, electronic, or telephonic requests for case record information be honored without a signed ROI, except under circumstances specifically noted in section 1.4 of this policy.
ADVR will not honor ‘blanket’ or ‘general’ ROIs.
ADVR must release personal information as required by Federal law or regulations.
ADVR must release personal information in response to investigations in connection with law enforcement, fraud, or abuse, unless expressly prohibited by Federal or State laws or regulations, and in response to an order issued by a judge, magistrate, or other authorized judicial officer.
ADVR may also release personal information in order to protect the individual or others, if the individual poses a threat to their safety or to the safety of others.

1.4 Response to Subpoena/Court Order

A court may request an individual’s case record. Confidentiality statutes (AS 23.15.190 and 34 CFR § 361.38) apply even in the event of a subpoena or court order. ADVR only honors subpoenas and court orders signed by a magistrate, judge, or other authorized judicial officer.

Upon receipt of a subpoena or court order, the VR Counselor will notify their VR Manager and the individual of the subpoena/court order. If the individual does not want to sign an ROI, the issue will be referred to the Chief of Rehabilitation Services for further legal advisement. If the individual signs an ROI, the ADVR employee will copy only the information specified on the signed ROI and specified in the subpoena/court order. ADVR will verify it is not re-releasing information contrary to the originator’s stipulation and will provide the copies to the requestor.

1.5 Release of Information without an ROI Form

ADVR may release or obtain personal information without a signed ROI in the following situations:

In order to protect the individual or others when the individual poses a threat to their safety or the safety of others.
In the case of emergency, ADVR employees may release information pertinent to the situation so the qualified responding personnel have the information necessary to appropriately attend to the individual.
If required by Federal or State laws or regulations.
In response to investigations in connection with law enforcement, fraud, or abuse, unless expressly prohibited by Federal or State laws or regulations, and in response to an order issued by a judge, magistrate, or other authorized judicial officer.
For purposes directly connected with the provision of services and/or the administration of the rehabilitation program under which services are provided, and in accordance with a written agreement. This may include but is not necessarily limited to audits, evaluation, and research only to persons officially connected with such audit; evaluation; and research. The information will be managed in a manner to safeguard confidentiality and the final product will not reveal personal identifying information.
Sharing of information amongst agency staff and medical/psychological consultants.
Information included on an Authorization for Purchase to a vendor.
To the Designated State Agency (the Department of Labor and Workforce Development) solely as it relates to the administration of the VR Program.
To the Social Security Administration (SSA) for the purpose of program cost reimbursement from the SSA, effective for an extended period of time beyond case closure.
To an Administrative Law Judge in the event of a request for an Impartial Due Process Hearing.
To the Office of the Attorney General if the Division requires legal guidance or representation.

1.6 Confidentiality Risks Associated with Technology

While electronic communication is often a preferred method of communication, there are some risks associated with it. ADVR uses encrypted systems for electronic communication through email, an electronic communication system (SARA), and text messaging (SMS). As with all electronic communication, there is a risk of correspondence accidently being sent to the wrong person, someone else intercepting the message, or someone such as a household member accessing the correspondence. This information is further explained in ADVR’s Professional Disclosure Statement.

1.7 Record Retention

ADVR retains closed case files in a secure location for three years following the last day of the State fiscal year in which a case is closed, at which point the hard copies are destroyed in accordance with the Division’s Records Retention and Disposition Schedule. Scanned copies of signed Individualized Plans for Employment are retained for 5 years in accordance with SSA guidance.

Although ADVR maintains electronic records, the official case file is the hard file.

2.0 Definitions

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3.0 Exceptions

Any exception to Policy must be approved by the Chief of Rehabilitation Services or their designee.