Section 17-401.1-35 - Confidentiality(a) The division shall inform all applicants or, as appropriate, their representatives about the division's need to collect personal information and the requirements governing its use, including: (1) The authority under which information is collected;(2) The principal purposes for which the division intends to use or release the information;(3) Whether providing the requested information to the division is mandatory or voluntary and the effects of not providing the requested information;(4) Identification of those situations in which the division requires or does not require informed written consent of the individual before information may be released; and(5) Identification of other agencies to which information is routinely released.(b) The division shall secure the written and informed consent of the applicant or eligible individual or, as appropriate, individual's representative, as authorization for requesting information about the individual from other agencies or individuals. (1) The authorization for release of information shall list the specific types of information being requested.(2) Any and all requests for records and information that indicate that a person has a human immunodeficiency virus (HIV) infection, AIDS related complex (ARC) or acquired immune deficiency syndrome (AIDS), necessary to determine an applicant's eligibility for VR services shall be requested on an authorization for release of information form, separate from requests for any other records and information.(c) All applicants and eligible individuals and, as appropriate, those individual's representatives, service providers, cooperating agencies, and interested persons shall be informed through appropriate modes of communication of the confidentiality of personal information and the conditions for accessing and releasing this information. (1) An explanation of the division's policies and procedures affecting personal information shall be provided to each individual in that individual's native language, or through the appropriate mode of communication.(2) Any and all records given or made available to the division, including all communication which identifies any applicant or eligible individual who has a human immunodeficiency virus (HIV) infection, AIDS related complex (ARC), or acquired immune deficiency syndrome (AIDS), shall be protected and, as appropriate, kept in a separate part of the division's record of services for the individual, apart from other confidential information, and shall not be released or made public upon subpoena or any other method of discovery except in accordance with chapter 325, part VI, Hawaii Revised Statutes.(d) The division shall safeguard the confidentiality of all current or stored personal information including photographs and lists of names of applicants or eligible individuals, given or made available to the division, its representatives, or its employees, in the course of the administration of the VR program. (1) All records shall be kept in confidential folders and filed in secured equipment or rooms of the division.(2) All personal information in the possession of the division shall be used only for purposes directly connected with the administration of the VR program. Identifiable personal information shall not be shared with advisory or other bodies that do not have official responsibility for administration of the program.(3) Personal information may be obtained from service providers and cooperating agencies under assurances that the information may not be further divulged in the administration of the program, except as provided under subsections (e) through (h).(e) Confidential records shall be open to inspection in the division's offices only under the following conditions: (1) By authorized division employees and those of the United States government, Federal Department of Education, in connection with their official duties in the administration of the VR and related programs;(2) By personnel of a rehabilitation agency approved by the division when inspection of the record is for the sole purpose of providing related rehabilitation services and the agency and personnel are subject to standards of confidentiality comparable to those of the division; and(3) By an outside source, when a written waiver specifically consenting to have the record reviewed has been obtained from the applicant or eligible individual or, as appropriate, the individual's representative.(f) Confidential information may be released to applicants and eligible individuals under the following conditions: (1) Except as provided in paragraphs (2) and (3), if requested in writing by an applicant or eligible individual, the division shall make all requested information in the division's record of services for that individual, accessible to and shall release a copy of the requested information to the individual or individual's representative within ten working days following the date of request. The ten-day period may be extended for an additional twenty days if the division provides to the individual, within the initial ten working days, a written explanation of unusual circumstances causing the delay.(2) Medical, psychological, or other information that the division determines may be harmful to the individual may not be released directly to the individual, but must be provided to the individual through a third party chosen by the individual, which may include, among others, an advocate, a family member, or 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 to the court-appointed representative.(3) If personal information has been obtained from another agency or organization, copies may be released only by, or under the conditions established by, the other agency or organization.(4) An applicant or eligible individual who believes that information in the individual's record of services is inaccurate or misleading may request in writing that the division amend the information. If the information is not amended, the request for an amendment must be documented in the record of services. (A) Within twenty business days after receipt of a written request from an applicant or eligible individual or, as appropriate, the individual's representative, to correct or amend any factual error, misrepresentation, or misleading entry in the division's record of services for that individual, the division shall acknowledge receipt of the request and purported evidence in writing and shall promptly: (i) Make the requested correction or amendment; or(ii) Inform the individual in writing of its refusal to correct or amend the record, the reason for the refusal, and of the individual's right to request for a review of the decision in accordance with section 17-400.1-5.(B) Not later than thirty working days after the receipt of a request for review of the division's refusal to allow correction or amendment of information in the division's record of services for the individual, the division shall make a final determination. If upon final determination, the division refuses to allow the correction or amendment of the record, the division shall so state in writing and: (i) Permit the individual, whenever appropriate, to file in the record a concise statement setting forth the reasons for the individual's disagreement with the division's refusal to make the correction or amendment; and(ii) Notify the individual or, as appropriate, the individual's representative of the individual's right to bring civil action against the division in accordance with section 92F-27, Hawaii Revised Statutes.(g) Copies of personal information may be released to an organization, agency, or individual engaged in audit, evaluation, or research only for purposes directly connected with the administration of the VR program, or for purposes that would significantly improve the quality of life for applicants and eligible individuals and only if the organization, agency, or individual assures that the following conditions will be met: (1) The information will be used only for the purposes for which it is being provided;(2) The information will be released only to persons officially connected with the audit, evaluation, or research;(3) The information will not be released to the involved individual;(4) The information will be managed in a manner to safeguard confidentiality; and(5) The final product will not reveal any personal identifying information without the informed written consent of the involved individual or the individual's representative.(h) The division may release information to other programs or authorities under the following conditions: (1) Upon receiving the informed written consent of the individual or, if appropriate, the individual's representative, the division may release personal information to another agency or organization for its program purposes only to the extent that the information may be released to the involved individual, and only to the extent that the other agency or organization demonstrates that the information requested is necessary for its program.(2) Medical or psychological information that the division determines may be harmful to the individual may be released if the other agency or organization assures the division in writing that the information will be used only for the purposes for which it is being provided and will not be further released to the individual.(3) The division shall release personal information if required by Federal law or regulations.(4) The division 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.(5) The division also may release personal information in order to protect the individual or others if the individual poses a threat to the individual's own safety or to the safety of others.(6) Information from, or the contents of the division's record of services for the individual may be released upon the direct order of a judge as part of a judicial proceeding after the State attorney general's office has been notified and consulted.(7) A fee shall be charged for reproducing any information or record furnished to any individual, agency, or organization under this section, in accordance with section 92-21, Hawaii Revised Statutes. All such fees shall be paid in to the State director of finance.Haw. Code R. § 17-401.1-35
[Eff AUG 13 2007] (Auth: HRS §§ 92-21, 92F-14, 92F-23, 346-10, 347-4, 348-3, 348-6; 29 U.S.C. §§709, 721; 34 C.F.R. §361.38) (Imp: HRS §§ 92-21, 92F-14, 92F-23, 346-10, 347-4, 348-3, 348-6; 29 U.S.C. §§709, 721; 34 C.F.R. §361.38 )