Section 505.5  Definitions

 

            Customer – Means a person who is receiving, has received, or has applied for any DHS-ORS services, including a student at a DHS-ORS school, or the person empowered by law to act on behalf of the customer.

 

            Confidential Information – Means all closed, active and future records and conversations (including Teletypewriter/Telecommunication Devices for the Deaf (TTY) between the customer and counselor kept by DHS-ORS, concerning the customer's program of services. Printouts from TTY conversations must be destroyed upon completion and documentation of the call.

 

            DHS-ORS – Means the Illinois Department of Human Services - Office of Rehabilitation Services.

 

            Employee – Means any person employed by DHS-ORS to participate in the delivery of DHS-ORS programs.  As used in this Part, the term shall also include supervisory level personnel and others in management positions.

 

            Guardian – Means the person appointed by a court as the guardian of the person of a minor or of an adult.

 

            Parent – Means either a natural or adoptive parent, except those whose parental rights have been terminated voluntarily or by order of a court, or otherwise restricted by order of a court.

 

            Representative – Means the person that the customer by Power of Attorney, or otherwise in writing, has authorized to act on the customer's behalf.

 

            Services – Means the assistance and support available under DHS-ORS programs to a customer.

 

(Source:  Amended at 19 Ill. Reg. 14821, effective October 5, 1995)

 

Section 505.10  General

 

a)         DHS-ORS, through its facilities and various offices, shall maintain records on all customers. All records shall be of a confidential nature and shall not be made available to the general public.

 

b)         Except as required or allowed in this Part, no confidential information obtained concerning customers may be disclosed without the consent of that individual.  If the information concerns a minor, the consent of a parent or a guardian must also be obtained.  After a person has reached the age of 18 years, the records of that individual may be disclosed only with the consent of that individual, or, if one has been appointed, the guardian of the person of an adult.

 

c)         Except as provided in this Part, each customer who has reached 12 years of age, a parent of a minor customer, or a guardian or duly authorized representative of a customer shall have full access to the confidential information contained in the customer's record.

 

d)         All customers, representatives, service providers, cooperating agencies, and interested persons shall be informed of the confidentiality of personal information and the conditions for accessing and releasing this information.

 

e)         All customers and their representatives must be informed about DHS-ORS' need to collect personal information and the policies governing its use. DHS-ORS shall inform customers of the following:

 

1)         the authority under which information is collected;

 

2)         the principal purposes for which DHS-ORS intends to use or release the information;

 

3)         whether the customer's provision of the information is mandatory or voluntary and the effects of not providing requested information to DHS-ORS;

 

4)         those situations where DHS-ORS requires or does not require informed written consent of the customer before information may be released; and

 

5)         other agencies to which information is routinely released and the types of information so released.

 

f)         All explanations to customers and their representatives about State policies and procedures affecting confidential information must be in the customer's primary language and must be through appropriate modes of communication for those individuals who rely on special modes of communication, including Braille.

 

g)         Any person entitled to access customer files (as set forth in Section 505.50 of this Part) may inspect those files and request modification of any part of the record which he or she believes is misleading.  If such a request is refused, the customer is entitled to submit a written rebuttal to such records and submit the rebuttal for incorporation as a permanent part of the record.  Whenever the disputed part of the record is disclosed, the rebuttal shall accompany the disclosed part.

 

h)         Information in case records received from, or developed for, the Social Security Administration (SSA) shall be controlled by its regulations governing confidentiality (20 CFR 401 (1992)).  Such information in the records of the DHS-ORS Bureau of Disability Determination Services shall be available to the other sections of DHS-ORS in connection with the delivery of services to a customer. However, should such information be sought by a customer, the inquiry shall be directed to the originating source of the information or the SSA.  However, by federal law, a Member of Congress has a right to receive this information upon request.

 

i)          This Part shall not apply to the educational records maintained by any DHS-ORS facilities.  Such records are subject to the Illinois School Student Records Act [105 ILCS 10] and any regulations thereunder.  Other DHS-ORS records received and maintained by the facilities operated by DHS-ORS shall not be commingled with the educational records and shall be governed by this Part.

 

(Source:  Amended at 19 Ill. Reg. 14821, effective October 5, 1995)

 

Section 505.20  Definitions (Renumbered)

 

(Source:  Section 505.20 renumbered to Section 505.5 at 15 Ill. Reg. 7728, effective May 7, 1991)

 

Section 505.30  Ownership of Records

 

All confidential information acquired by DHS-ORS is the property of DHS-ORS and shall remain so.  All contracts, grants, agreements, and other documents entered into by DHS-ORS shall so provide, and any attempt to waive this provision shall be void.

 

(Source:  Amended at 17 Ill. Reg. 9964, effective June 22, 1993)

 

Section 505.40  Release of Confidential Information without the Consent of the Customer

 

a)         An employee may, in the course of providing services, disclose confidential information without the consent of the customer to other DHS-ORS employees (e.g., counselor's supervisor, Legal Counsel, Hearings Coordinator), with the exception cited in Section 505.80(b) and (c). However, information in a vocational rehabilitation file may be shared only if it is for the administration of the VR program.  Information in a VR file may be released to HSP, DDS and other non-VR divisions only if the customer whose information is to be released consents.

 

b)         Pursuant to DHS-ORS obligations under federal and State law and regulations to utilize both similar benefits and alternative programs for which a customer may be eligible, the employee may disclose to agencies having such programs or benefits personal identifying information obtained during the intake process without the consent of the customer. However, only such personal identifying information as is essential to the referral shall be disclosed.  The remainder of the information shall only be released to another agency after written consent from the customer is obtained.

 

c)         Only the Associate Director, Office of Rehabilitation Services shall authorize the release of confidential information to an organization, agency, or individual engaged in audit, evaluation, research, or employee disciplinary actions and only for purposes directly connected with the administration of the program or for purposes which would significantly improve the quality of life for persons with disabilities.  The organization, agency, or individual shall assure that:

 

1)         the information shall be used only for the purposes for which it is being provided;

 

2)         the information shall be released only to persons officially connected with the audit, evaluation or research, or employee disciplinary action;

 

3)         the information shall not be released to the customer;

 

4)         the information shall be managed in a manner to safeguard confidentiality; and

 

5)         the final product shall not reveal any personal identifying information without the informed written consent of the customer.

 

d)         Organizations and individuals not directly involved in the DHS-ORS delivery of services shall not have access to confidential information. However, if such organizations or individuals request information from DHS-ORS which would be used in the development and planning of their own programs, then the Associate Director, Office of Rehabilitation Services may, in his/her discretion, conduct such studies and surveys on their behalf as they request and release the results to them deleting any personal identifying information regarding any customers. In determining whether to conduct such studies or surveys, the Associate Director, Office of Rehabilitation Services will consider such factors as the time demand on staff in developing responses, any past experience DHS-ORS has in working with the organization or individual, and the specific relationship of the study or survey questions to the program being planned.  All other aspects of the studies or surveys shall be as agreed between parties. DHS-ORS may share confidential information on a need-to-know basis with its trainees, interns, counselor aides, and volunteers, who shall be bound by DHS-ORS rules concerning confidentiality in the same manner as employees.

 

e)         Confidential information may also be released without consent in the following situations:

 

1)         in order to protect the customer or others when the customer poses a threat to his/her safety or to the safety of others;

 

2)         if required by federal law;

 

3)         in response to investigations in connection with law enforcement, fraud or abuse; or

 

4)         in response to judicial order, including a subpoena.

 

f)         Information shall be released without consent to the Department of Children and Family Services as detailed below:

 

1)         Confidential information shall be released without consent to the Department of Children and Family Services if the employee has reasonable cause to believe a child is or has been neglected or abused, in accordance with the Abused and Neglected Child Reporting Act [325 ILCS 5].  "Reasonable cause" means that the available facts when viewed in light of surrounding circumstances would cause a reasonable person to believe that a child was abused or neglected.

 

2)         For any report made to DHS-ORS concerning abused or neglected children, the DHS-ORS employee taking the report shall immediately make a verbal report, followed by a written report within 48 hours, regarding any and all information to the Department of Children and Family Services (DCFS) and shall make whatever follow-up reports are required by DCFS.

 

(Source:  Amended at 19 Ill. Reg. 14821, effective October 5, 1995)

 

Section 505.50  Release of Confidential Information with the Consent of the Customer

 

The customer, parent of a minor customer, guardian or representative may request and consent in writing to the release of confidential information to the customer, parent of a minor customer, guardian or representative, or other individual, agency or organization.  The following rules shall apply to all such releases:

 

a)         When such a request for release of confidential information to the customer, parent of a minor customer, guardian or representative is received, all confidential information contained in the customer's file may be inspected and copied with the exceptions as noted below:

 

1)         Information which has been obtained from another individual, agency or organization and which that individual, agency or organization has specifically prohibited DHS-ORS from further releasing.   In such instances, the customer shall be informed of the source of such information in order to access it directly from the originator.

 

2)         Any medical or psychological information not precluded from release by subsection (a)(1) which would be harmful to the customer, as determined by the counselor, shall be released only to the customer's parent, guardian, or representative, or to a physician or licensed or certified psychologist. When releasing such information, DHS-ORS shall caution the receiver of the information that it may be harmful to the customer and that, therefore, the receiver is responsible for the use of the information.

 

b)         When the customer, parent of a minor customer, guardian or representative requests release to another individual, agency or organization, DHS-ORS, upon receiving the informed written consent, shall release to such other individual, agency or organization for its program purposes only that information which may be released to the customer, parent of a minor customer, guardian or representative, and only to the extent that the other individual, agency or organization demonstrates that the information requested is necessary for its program.  Information which is determined would be harmful to the customer shall be released only when the other agency or organization assures DHS-ORS that the information will be used only for the purpose for which it is being provided and will not be further released to the customer.

 

(Source:  Amended at 19 Ill. Reg. 14821, effective October 5, 1995)

 

Section 505.60  Procedures

 

a)         When confidential information is released, the DHS-ORS employee releasing it shall place a note on the CASE FOLDER MEMORANDUM stating the name of the person to whom it was given, the date, and the reason for such release.  Additionally, the receiver shall be sent a notation from the releasing employee that the information is confidential and may be used only for the purposes for which it is released, and may not be further distributed without the written consent of both DHS-ORS and the customer.

 

b)         If a person outside DHS-ORS properly authorized under this Section merely reads the confidential file, a notation shall be placed in the file stating his or her name, the name of the agency or organization, the date and the reason such reading or disclosure was permitted.

 

c)         No confidential information shall be released over the telephone to persons outside DHS-ORS without the written consent of the customer or in situations authorized under this Section when no consent is required.  In all telephone contacts, including DHS-ORS employees, involving the confidential information, a notation shall be made in the CASE FOLDER MEMORANDUM of the release.

 

d)         The original file may not be removed from the control of DHS-ORS, except in compliance with a subpoena or in the discretion of the Associate Director, but may be viewed in the office in compliance with this Section. All other releases requesting or requiring copies shall be provided through photocopies. Except for customers, DHS-ORS may charge its actual cost for such copies.

 

(Source:  Amended at 19 Ill. Reg. 14821, effective October 5, 1995)

 

Section 505.70  Subpoenas

 

a)         When a subpoena for the production of records is received by DHS-ORS, the employee receiving it shall release such information in accordance with the requirements and procedures of this Part, and with the terms of the subpoena. A written notice shall accompany the records identifying the removed material and directing the person issuing the subpoena for records to the proper source for release of Section 505.50(a)(1) records or to the customer for consent for Section 505.80(a) records.

 

b)         Information which is governed by the following Sections shall be removed before releasing the file, if the release is other than in court:

 

1)         Section 505.50(a) which a providing individual, agency or organization refuses to allow DHS-ORS to release; or

 

2)         Section 505.10(h).

 

c)         If an employee receives a subpoena to testify in court or in an administrative hearing, the employee shall immediately contact DHS-ORS Legal Division to discuss the subpoena. If the subpoena requires a court appearance, the information shall be segregated in the file and the employee shall follow the order of the court after drawing the court's attention to the federal laws and regulations appertaining thereto.

 

(Source:  Amended at 19 Ill. Reg. 14821, effective October 5, 1995)

 

Section 505.80  Additional Rules

 

a)         The release by DHS-ORS of any clinical, social work, psychological, psychiatric or other information of a mental health or developmental disability services nature, including, but not limited to, examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation, shall be governed by the Mental Health and Development of Disabilities Confidentiality Act [740 ILCS 110] unless requirements of the federal regulations (34 CFR 361.49) are more stringent.

 

b)         AIDS, ARC, HIV Information.

            No person or employee shall disclose or be compelled to disclose the identity of a customer or of a DHS-ORS student who has been exposed to the human immunodeficiency virus (HIV), the identity of the person upon whom a HIV test is performed or the results of such a test without the written informed consent of the customer or student, or legally authorized representative, except as permitted by the Illinois AIDS Confidentiality Act [410 ILCS 305].

 

c)         AIDS Information as it Relates to DHS-ORS Schools

 

1)         A DHS-ORS school principal shall only disclose the identity of an HIV infected student:

 

A)        if notified by a public health authority (e.g., Illinois Department of Public Health, county or city health department) that the student has been exposed to the HIV infection;

 

B)        if in the principal's judgement it is necessary per the Communicable Disease Prevention Act [410 ILCS 315]; and

 

C)        if approval to share the information has been obtained through the chain of command to the Associate Deputy Director of the Bureau of Rehabilitation Services, but identifying information may not be disclosed to obtain approval.

 

2)         If these conditions are met, the principal shall inform the following:

 

A)        the superintendent of the DHS-ORS school;

 

B)        the school nurse;

 

C)        other persons as shall be necessary in the principal's opinion (e.g., dorm parent, wrestling coach, teachers in whose classes the student is enrolled), as long as the student's identity is not revealed; and

 

D)        those persons who are required to decide the student's placement or educational program, but only if there is a need to know such information in order to provide the student with medical services, e.g., when a student must take medication during school attendance or when the student's clinical condition necessitates other medical services.

 

d)         Media Requests. No confidential information requested by the media concerning a customer shall be released, unless the written consent of the customer, guardian or representative is first obtained.

 

e)         Legislative Requests. Release of Information to State Legislators or Legislative Bodies

 

1)         Only the Associate Director or customer, guardian or representative can authorize the release of customer information to the Illinois legislature, committees, commissions or employees thereof; except if:

 

A)        access is authorized by the legislature by resolution or otherwise; or

 

B)        a member of a committee or commission needs such information to advance legislation pending before such committee.

 

2)         Legislators may receive a general status report, not containing confidential information upon request.

 

3)         Auditors with specific legislative authority shall be given access to any and all records necessary for such audit.  The auditors shall be prohibited by this Part from any further dissemination of confidential information beyond the scope of the audit, and shall similarly be bound by a statute governing the operation of the Auditor General's Office [301 ILCS 5], and regulations promulgated pursuant thereto (Auditor General Regulation 3:3 11A(1), "Maintenance of Information").

 

f)         All reports made to DHS-ORS pursuant to the Domestic Abuse of Disabled Adults Intervention Act (Act) [201 ILCS 2435] shall be confidential and may not be released except as follows:

 

1)         To DHS-ORS employees for the purpose of the Act;

 

2)         To law enforcement agencies investigating suspected abuse, neglect or exploitation;

 

3)         To the adult disabled person who is the subject of the report;

 

4)         To a court for an in camera inspection but only pursuant to a finding that access is necessary;

 

5)         To a grand jury if it finds that access is necessary for an issue pending before it;

 

6)         To any person authorized by the Associate Director for audit or research purposes;

 

7)         To a coroner or medical examiner; or

 

8)         To the agency designated pursuant to the Protection and Advocacy for Developmentally Disabled Persons Act [405 ILCS 40] and the Protection and Advocacy for Mentally Ill Act [405 ILCS 45].

 

            In addition, the identity of the reporter must be kept confidential unless express written consent is received from him/her to release his/her name.

 

(Source:  Amended at 19 Ill. Reg. 14821, effective October 5, 1995)