Vocational Rehabilitation Services Manual A-200: Customer Rights and Legal Issues

The Rehabilitation Act of 1973 (Act) was amended by the Workforce Innovation and Opportunity Act (WIOA), which was signed into law on July 22, 2014. Changes to the Act made by WIOA have been implemented through amendments to the regulations governing the State Vocational Rehabilitation Services program (VR program) (34 Code of Federal Regulations (CFR) part 361) and State Supported Employment Services program (Supported Employment program) (34 CFR part 363), administered by the Rehabilitation Services Administration (RSA).

1. Customer rights under the individualized plan for employment (IPE) include the following:

The changes to 34 CFR §361.45, "Development of the individualized plan for employment," are intended to efficiently and effectively serve eligible individuals, move them through the VR process with minimal delay, and achieve employment outcomes in competitive integrated employment.

It is important to note that the state is required to provide certain information to each eligible individual or, as appropriate, the individual's representative, which include the option to develop all or part of the IPE, with assistance from various individuals or organizations; an explanation for determining an eligible individual's financial commitments under an IPE; a description of the rights and remedies available to the individual; and a description of and contact information for a client assistance program (CAP). Subsection (c) of 34 CFR §361.45 is set out below, relating to requirements for development of the IPE.

§361.45(c) Required information. The State unit must provide the following information to each eligible individual or, as appropriate, the individual's representative, in writing and, if appropriate, in the native language or mode of communication of the individual or the individual's representative:

(1) Options for developing an individualized plan for employment. Information on the available options for developing the individualized plan for employment, including the option that an eligible individual or, as appropriate, the individual's representative may develop all or part of the individualized plan for employment—

(i) Without assistance from the State unit or other entity; or

(ii) With assistance from—

(A) A qualified vocational rehabilitation counselor employed by the State unit;

(B) A qualified vocational rehabilitation counselor who is not employed by the State unit;

(C) A disability advocacy organization; or

(D) Resources other than those in paragraph (c)(1)(ii)(A) through (C) of this section.

(2) Additional information. Additional information to assist the eligible individual or, as appropriate, the individual's representative in developing the individualized plan for employment, including—

(i) Information describing the full range of components that must be included in an individualized plan for employment;

(ii) As appropriate to each eligible individual—

(A) An explanation of agency guidelines and criteria for determining an eligible individual's financial commitments under an individualized plan for employment;

(B) Information on the availability of assistance in completing State unit forms required as part of the individualized plan for employment; and

(C) Additional information that the eligible individual requests or the State unit determines to be necessary to the development of the individualized plan for employment;

(iii) A description of the rights and remedies available to the individual, including, if appropriate, recourse to the processes described in §361.57; and

(iv) A description of the availability of a client assistance program established under part 370 of this chapter and information on how to contact the client assistance program.

(3) Individuals entitled to benefits under Title II or XVI of the Social Security Act. For individuals entitled to benefits under Title II or XVI of the Social Security Act on the basis of a disability or blindness, the State unit must provide to the individual general information on additional supports and assistance for individuals with disabilities desiring to enter the workforce, including assistance with benefits planning.

2. Customer rights to review of determinations include the following:

Section 102(c) of the Act, as amended by WIOA, establishes an appeals process for individuals who are not satisfied with the services that the VR program is or is not providing, giving individuals the right to pursue mediation as a means of resolving the complaint. The Act also establishes a formal hearing process and a judicial review process for individuals.

Additionally, the Act establishes a CAP, which assists individuals in resolving disputes with the VR agency. The CAP has the authority to advocate on an individual's behalf to resolve a dispute between the individual and the VR agency. Customers can contact the CAP in their state directly for further advice and assistance regarding rights to appeal.

Section 361.57 of 34 CFR requires the designated state unit (DSU) to develop and implement procedures to ensure a customer can request a review of any determination made by DSU personnel. These procedures must provide notification of the customer's rights, including the right to obtain a review of DSU determinations through an impartial due process hearing or through mediation, and the right to receive assistance from the CAP through either process.

It is important to note that the DSU may not suspend, reduce, or terminate a customer's VR services pending resolution through an informal process, mediation, or a formal hearing unless the customer or their representative, as appropriate, agrees or TWC has evidence that services have been obtained through misrepresentation, fraud, collusion, or criminal conduct. The Office of the Attorney General (OAG) will inform the VR counselor if TWC has evidence that services have been obtained through unlawful means.

TWC rules governing VR hearings and mediation procedures are found in 40 Texas Administrative Code (TAC), Chapter 850.

34 CFR §361.38. Protection, use, and release of personal information.

(a) General provisions. (1) The State agency and the State unit must adopt and implement written policies and procedures to safeguard the confidentiality of all personal information, including photographs and lists of names. These policies and procedures must ensure that—

(i) Specific safeguards are established to protect current and stored personal information, including a requirement that data only be released when governed by a written agreement between the designated State unit and receiving entity under paragraphs (d) and (e)(1) of this section, which addresses the requirements in this section;

(ii) All applicants and recipients of services and, as appropriate, those individuals' representatives, service providers, cooperating agencies, and interested persons are informed through appropriate modes of communication of the confidentiality of personal information and the conditions for accessing and releasing this information;

(iii) All applicants and recipients of services or their representatives are informed about the State unit's need to collect personal information and the policies governing its use, including—

(A) Identification of the authority under which information is collected;

(B) Explanation of the principal purposes for which the State unit intends to use or release the information;

(C) Explanation of whether providing requested information to the State unit is mandatory or voluntary and the effects of not providing requested information;

(D) Identification of those situations in which the State unit requires or does not require informed written consent of the individual before information may be released; and

(E) Identification of other agencies to which information is routinely released;

(iv) An explanation of State policies and procedures affecting personal information will be provided to each individual in that individual's native language or through the appropriate mode of communication; and

(v) These policies and procedures provide no fewer protections for individuals than State laws and regulations.

(2) The State unit may establish reasonable fees to cover extraordinary costs of duplicating records or making extensive searches and must establish policies and procedures governing access to records.

(b) State program use. All personal information in the possession of the State agency or the designated State unit must be used only for the purposes directly connected with the administration of the vocational rehabilitation program. Information containing identifiable personal information may not be shared with advisory or other bodies that do not have official responsibility for administration of the program. In the administration of the program, the State unit may obtain personal information from service providers and cooperating agencies under assurances that the information may not be further divulged, except as provided under paragraphs (c), (d), and (e) of this section.

(c) Release to applicants and recipients of services. (1) Except as provided in paragraphs (c)(2) and (3) of this section, if requested in writing by an applicant or recipient of services, the State unit must make all requested information in that individual's record of services accessible to and must release the information to the individual or the individual's representative in a timely manner.

(2) Medical, psychological, or other information that the State unit 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, it may be released only by, or under the conditions established by, the other agency or organization.

(4) An applicant or recipient of services who believes that information in the individual's record of services is inaccurate or misleading may request that the designated State unit amend the information. If the information is not amended, the request for an amendment must be documented in the record of services, consistent with §361.47(a)(12).

(d) Release for audit, evaluation, and research. 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 vocational rehabilitation program or for purposes that would significantly improve the quality of life for applicants and recipients of services and only if, in accordance with a written agreement, the organization, agency, or individual assures that—

(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.

(e) Release to other programs or authorities.

(1) Upon receiving the informed written consent of the individual or, if appropriate, the individual's representative, the State unit may release personal information to another agency or organization, in accordance with a written agreement, for its program purposes only to the extent that the information may be released to the involved individual or the individual's representative 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 State unit determines may be harmful to the individual may be released if the other agency or organization assures the State unit that the information will be used only for the purpose for which it is being provided and will not be further released to the individual.

(3) The State unit must release personal information if required by Federal law or regulations.

(4) The State unit 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 State unit also may release personal information in order to protect the individual or others if the individual poses a threat to his or her safety or to the safety of others.

(Authority: Sections 12(c) and 101(a)(6)(A) of the Rehabilitation Act of 1973, as amended; 29 USC 709(c) and 721(a)(6)(A))

Any party in an appeal may request mediation. Mediation is a voluntary process in which an appellant and a VR representative may work with a trained mediator to try to resolve a dispute with VR about determinations that affect the appellant's VR services.

Participation in the mediation process is voluntary on the part of the customer and VR.

The mediation process cannot deny or delay:

• the appellant's right to pursue resolution of the dispute through an impartial hearing held 60 days from receipt of the appellant's request for a due-process hearing; or
• any other rights described in this chapter.

At any point during mediation, either party or the mediator may decide to end the mediation. When mediation is ended, either party may pursue resolution through an impartial hearing.

When the VR hearings coordinator receives a request for mediation, the hearings coordinator selects an individual from a list of qualified mediators who are knowledgeable about the laws and regulations concerning VR services.

Mediation sessions are scheduled and conducted in a timely manner and can be held over the telephone, if that is the customer's preference, or in person. If an in-person hearing is conducted, the location is usually the VR regional or field office nearest the appellant's residence or a place agreed to by both parties. Arrangements can be made to address the need for any accommodations.

Discussions that occur during the mediation process are kept confidential and are not used as evidence in any subsequent due-process hearing or civil proceedings. The parties to the mediation process may be required to sign a confidentiality pledge before the process begins.

Any agreement reached during the mediation must be in writing and signed by all parties. The agreement becomes a part of the customer's record.

VR pays the cost of a mediation session. However, VR does not pay for costs related to the appellant's representation by counsel or another advocate selected by the appellant.

Subrogation is a process in which TWC recovers all or part of the costs of providing rehabilitation services when a customer:

• was injured in an accident that was somebody else's fault; and
• stands to recover monetary damages in a lawsuit or insurance settlement.

TWC-VR's statutory authority for subrogation is Texas Labor Code §352.058. When TWC-VR funds are expended on behalf of a customer who has filed litigation or other legal claims, OGC helps recover those funds.

A-205-1: Legal Authorization

Section 352.058 provides that TWC-VR be subrogated to the customer's right of recovery when TWC-VR pays for rehabilitation or medical care services for a customer. In other words, TWC-VR is put in the customer's place and assumes the customer's right of recovery from:

• personal insurance;
• another person for personal injury caused by the other individual's negligence or wrongdoing; or
• any other source.

VR's right of subrogation is limited to the cost of the services VR has provided to the customer.

Example: VR pays for rehabilitation or medical services made necessary by a motor vehicle accident, and the customer later receives a court judgment or insurance settlement for the accident. VR is entitled to be reimbursed out of the proceeds of the settlement or judgment for the services VR provided to the customer.

TWC-VR has the ability to waive, totally or partially, VR's subrogation interest when it is found enforcement will tend to defeat the purpose of the customer's rehabilitation.

A-205-2: Asking the Right Questions

When completing or updating the Personal Information page in ReHabWorks (RHW), the VR counselor must ask the customer whether he or she has retained an attorney for any issues associated with his or her disability or the requested VR services.

If the customer confirms that he or she has retained an attorney, then it is presumed that there is a pending claim or litigation and the VR counselor must ascertain whether VR may pursue subrogation. Refer to A-205-3: Types of Subrogation for additional information about pursuing subrogation.

A-205-3: Types of Subrogation

When the customer has retained an attorney or there is a disability-related lawsuit pending, the VR counselor reviews the following scenarios with the customer to determine whether a VR3500, Subrogation Report should be completed:

TWC-VR pursues recovery of expenditures in the following types of cases:

• A customer is bringing claims or suing another party for personal injury caused by the other party's negligence or wrongdoing, and when VR has expended, or will expend, funds for rehabilitation services due to the negligence or wrongdoing.
• A customer was injured on the job, but there is no workers' compensation coverage, and the customer has filed a liability claim or lawsuit.
• The Texas Department of Insurance, Division of Workers' Compensation, has denied the customer's claim, and the customer is appealing the denial either to the Texas Department of Insurance, Division of Workers' Compensation, or in court, and TWC-VR has provided or will provide diagnostic or restorative services related to the injury.

TWC does not pursue subrogation when any of the following are true:

• The Texas Department of Insurance, Division of Workers' Compensation, is paying or will pay for the customer's medical expenses.
• When the customer is applying for Supplemental Security Income (SSI) or Social Security Disability (SSD) benefits.
• When TWC-VR has expended no funds and expects to spend no funds.
• When TWC-VR expenditures in on-the-job injury cases include no medical costs relating to the original injury.

A-205-4: Subrogation and Use of Comparable Benefits

TWC-VR usually does not purchase goods or services for customers when there are other sources to cover these expenses. However, per 34 CFR §361.53(a), VR funds can be used before a settlement or judgment is reached in a workers' compensation or liability case when funds are not available at the time needed to ensure that the customer's progress toward the employment goal is not delayed.

A-205-5: Subrogation Procedure

If it is determined that TWC-VR may be entitled to pursue subrogation there are several steps required to ensure that OGC is notified of the pending subrogation case in a timely manner.

As part of the diagnostic interview or when completing the IPE, Joint Annual Review, or IPE amendment, VR staff must complete the VR3500, Subrogation Report. Include the details of the subrogation in either the diagnostic interview or another case note.

Enter "yes" in the "lawsuit pending" section of the RHW Personal Information page and send the form to OGC by email, fax, or regular mail to:

Texas Workforce Commission
Office of the General Counsel
Attention: Legal Assistant
101 East 15th Street, Room 608
Austin, Texas 78778

Tel: 512-936-3511
Fax: 512-463-1426
Email: subrogation@twc.texas.gov

A copy of the VR3500 is filed in the customer's case file. A copy of the Explanation of TWC-VR Subrogation Rights under Texas Law is provided to the customer.

If the customer has questions about the subrogation process, VR staff can escalate those questions through their chain of management to OGC for additional guidance and support.

Once the VR3500, Subrogation Report has been completed and submitted to OGC, recovery will begin when funds that are recoverable have been encumbered,

TWC-VR field staff are not required to track a subrogated case.

A-205-6: Role of Office of General Counsel in Subrogation Process

OGC provides all legal support and representation regarding subrogation, including legal intervention in lawsuits. Additionally, the office acts as a liaison with the OAG.

Within OGC, the subrogation coordinator:

• helps identify cases that are appropriate for subrogation;
• begins efforts to recover costs when OGC is notified of a subrogation case; and
• communicates with field counselors and private attorneys to facilitate reimbursement.

A-205-7: The Recovery Process

When OGC finalizes a settlement of a subrogation claim, the customer's attorney often will submit a request for a waiver of all or part of the TWC-VR subrogation lien. When this happens, the TWC subrogation coordinator:

• communicates with the customer's attorney regarding the subrogation claim; and
• sends a list of assessment questions to the counselor of record or the VR Manager of that unit.

The VR counselor of record or VR Supervisor:

• completes the list of assessment questions; and
• sends the completed document to the subrogation coordinator within three workdays.

When all necessary documents, including the VR counselor's assessment responses, are received, TWC-OGC will use the information provided to negotiate an appropriate settlement amount for the subrogation claim, if warranted.

The final settlement amount may range from 0 percent to 100 percent of the total lien amount claimed by TWC-VR.

This section applies to all customer records and information pertaining to individuals who apply for or receive VR services. The VR Release Forms Desk Aid is available for additional guidance.

A customer is anyone who applies for or receives VR services.

A customer representative is any individual chosen by an applicant or eligible individual, including a parent, guardian, other family member, or advocate. If a court has appointed a guardian or representative for an applicant or eligible individual, that person is the individual's representative.

The customer representative for a child who is less than 18 years old and not emancipated or married is the parent or court-appointed guardian. The parent is presumed to be the representative unless documentation is provided showing otherwise.

For VR to safeguard the customer's confidentiality, the customer or the customer's representative must provide documentation of representation to VR. The customer's representative has responsibilities related to the provision of VR services until VR is notified by the customer or the customer's representative that the person is no longer the representative.

A customer's representative must:

• complete VR1487, Designation of Applicant or Customer Representative; or
• provide power of attorney documentation or a written statement by the customer designating a representative.

A court-appointed guardian or representative must provide current legal documentation of guardianship.

The paper case file for an emancipated or married minor child must include current legal documentation as proof of emancipation or marriage.

A-207-1: Request for Records Procedures

The VR employee contacts OGC immediately, and notifies the immediate VR Supervisor, when:

• a customer, customer's representative, or lawyer requests that a TWC employee discusses a customer's case with a lawyer;
• a lawyer, judge, magistrate, or clerk of court calls or writes TWC concerning a subpoena; or
• the VR employee is served with a subpoena that requires a TWC employee to appear:
  • in court;
  • before an administrative proceeding; or
  • for a deposition.

The VR staff member sends a copy of the subpoena via email to open.records@twc.texas.gov or fax to 512- 463-2990. Responses to subpoenas, court orders, or summons are centrally coordinated through the OGC Open Records Section. Release of records is prohibited unless expressly approved by OGC. The VR staff member should contact OGC via email at open.records@twc.texas.gov or call the VR Records Coordinator at 512-936-6355 for instructions in the following circumstances.

A-207-2: Obtaining Customer Information

Customer information usually is obtained from:

• the customer;
• another individual; and/or
• various agencies and organizations.

To authorize release of customer information at the time of application, the applicant completes and signs the VR5060, Permission to Collect Information.

Refer to A-210: PIN and Signature Procedures for more information on signatures.

Release to Obtain Records from Other Agencies

Other agencies and organizations usually require written permission from the individual before releasing personal information (e.g., medical, psychiatric, psychological, and/or social history records) to Texas Workforce Solutions Vocational Rehabilitation Services (TWS-VRS).

When an agency or organization requires that the customer sign the agency's own release form before providing information to TWS-VRS, including requests for alcohol and drug abuse patient records:

• obtain the customer's signature on the other agency's or organization's form, and
• return the signed form to the other agency or organization.

All applicants and recipients of services and, as appropriate, those individuals' representatives, must be informed of the confidentiality of personal information and the reasons for accessing this information. The requirements for the protection and use of confidential information are under 34 CFR §361.38.

Sometimes, the information source is subject to federal or state law limitations not always consistent with the legal limitations applicable to TWS-VRS. When an information source questions how TWS-VRS protects the confidentiality of customer information, the source may be provided with a copy of this chapter.

If the source has more stringent controls than TWS-VRS:

• accept the information;
• advise the source that a written statement must be clearly attached to the information, or that a stamp must be imprinted on all documents that
  • explains the restrictions on release,
  • identifies the person or organization imposing the restriction, and
  • identifies the source of the restriction (if the restriction is based on a statute or regulation, the written statement or stamp must clearly identify the statute or regulation);
• file the information and the written statement together so it will be clear that the statement goes with the information; and
• ensure that the imprinted stamp is affixed to all files and is clearly visible.

A-207-3: Safeguarding Customer Records and Information

Employees are responsible for protecting the confidential nature of information in customer case files, in accordance with this policy, and for prohibiting unauthorized access to them.

Information is not to be disclosed directly or indirectly, other than in the administration of the rehabilitation programs, unless:

• the consent of the customer has been obtained in writing;
• in compliance with a court order; or
• in accordance with a federal or state law or regulation, as described in this chapter.

The confidential information that is protected includes all customer-identifying information contained in:

• reports;
• lists; and
• other paper or electronic documents.

Specifically, this means any information that would identify an individual as being a VR customer.

Protected customer information includes information normally filed in a customer case file, such as:

• applications, medical reports, IPE, and contact reports; and
• any document held outside customer case records, such as Internal Audit reports containing information that identifies a customer by name, Social Security number (SSN), or other means.

A customer's case files and materials scheduled for inclusion in the customer's folders are kept in a locked desk, filing cabinet, or other suitable locked container when VR employees are not present to ensure proper security.

All other information identifying the customer is kept in a locked VR building, office area, or room when VR employees are not present to ensure proper security.

Good judgment must be exercised, and reasonable precautions taken, to ensure unauthorized individuals do not have access to confidential records. Employee violations of VR policy on protecting the confidential nature of customer records are grounds for appropriate disciplinary action.

All TWC employees must maintain a professional respect for the confidential nature of the data on individuals and refrain from indiscreet and/or casual conversation that might reveal to unauthorized individuals information concerning VR customers.

When the customer or his or her representative submits a valid release, that is, a properly completed written request for information, the VR counselor must provide in a timely manner the information requested from the customer's case file. The following are valid releases and are accepted by VR:

• A properly completed VR1517-2, Authorization for Release of Confidential Customer Records and Information;
• Social Security Administration (SSA) Form SSA-827, Authorization to Disclose Information to the Social Security Administration (SSA), version dated April 2009 or later (versions of Form SSA-827 dated before April 2009 are not valid and must not be honored); or
• An authorization or form provided by the customer, which, after evaluation on a case-by-case basis, has been found to meet the criteria set forth below.

To qualify as a valid release, a customer's authorization form must:

• be in writing (either handwritten or typed);
• identify the records or other information to be released;
• be signed by the customer or a representative;
• be dated;
• identify the individual (as appropriate, by name, telephone number, address) or entity to whom VR is authorized to release the information; and
• be specifically directed to VR. (Exception: Release forms that are not addressed, or releases addressed "To Whom It May Concern" or "To Custodian of Records," are valid if they identify the records to be released as VR records.)

Refer to A-210: PIN and Signature Procedures for more information on signatures.

A-209-1: Examples of Invalid Releases

General release forms, not addressed to VR and not identifying the records to be released as VR records, are not valid.

Example: "I authorize any organization having any records concerning me to release those records to..."

When the customer's own form authorizes individuals or organizations that are not part of VR to release the information, the release is not valid, and VR cannot honor the request.

Example: "I authorize all doctors, hospitals, and other medical providers who have treated me to release..."

Only the records that are identified in the request may be released.

Example: "I request release of my medical records" is valid for releasing copies of medical records but not valid for releasing rehabilitation records or other records in the customer's file.

A-209-2: Exceptions

In responding to requests submitted on a valid release, the VR counselor may not release the following:

• Information obtained from other governmental agencies with restrictions on re-release
• Customer criminal history records obtained from the DPS to anyone other than to the customer or the customer's representative
• Information that may be harmful to the customer, which may be released to the customer only through the customer's designated representative. (Information delivered directly to the customer's representative or a third party is releasable without regard to this restriction.) This exception does not apply to a Form SSA-827 request because the information is not released directly to the customer.
• Human immunodeficiency virus (HIV) test results, unless the authorization specifically states that HIV test results may be released

A-209-3: Release to Guardian or Court-Appointed Representative

When a guardian or court-appointed representative of the customer asserts entitlement to receive customer information without the customer's consent, before releasing any information, the VR counselor:

• obtains from the individual a certified copy of a court-issued letter of guardianship;
• files the letter or other appointment letter in the customer's case file; and
• ensures that the appointed representative completes and provides to TWC a valid release.

This applies only to adults who have been specifically identified by the court to be the customer's representative.

A-209-4: Release to Customer-Appointed Representative

Although the most common way of releasing customer information to family members and friends is using a valid release signed by the customer, occasionally information is released to an individual in his or her capacity as the customer's appointed representative. If information is to be released to an individual in his or her capacity as the customer's own representative, the customer must have appointed the representative by:

• completing the VR1487, Designation of Applicant or Customer Representative;
• obtaining power of attorney; or
• providing the customer's own form designating a representative.

The VR counselor files in the customer's case file the:

• VR1487;
• power of attorney; or
• the customer's own form designating a representative.

A-209-5: Release to a Customer's Relative

Unless the customer's relative is the customer's authorized representative, a customer's relative may not receive the customer's records without an explicit, written, and signed authorization on a valid release by the customer or the customer's representative.

When one of the following applies, the VR counselor ensures that the relative properly completes a valid release, before releasing the information:

• The customer is a minor, and the customer's parent is the authorized representative.
• There is a judicial finding of the customer's incompetence, and a relative of the customer, who also is the customer's legal guardian, is the authorized representative.
• A relative appointed by the court, also named as the customer's guardian, is the customer's representative.

A-209-6: Release to Individuals Accompanying a Customer to a Counseling Session

When a spouse, minor child, or another individual accompanies a customer or applicant to a counseling session, unless the individual is the customer's authorized representative, a VR employee must ensure that:

• the customer completes a VR1517-2, Authorization for Release of Confidential Customer Records and Information, or other valid release described in VRSM D-300: Records Management, authorizing the spouse, minor child, or other individual to be present during the discussion of confidential customer information; or
• any previously provided consent has not expired and contains information applicable to the current situation.

A-209-7: Release to Medical and Mental Health Professionals

In this section the following will be covered:

• Release of Information Potentially Harmful to the Customer
• Release of HIV Test Results
• Release to a Designated Mental Health Professional
• Release to a Designated Medical Professional
• Consultation to Review Potentially Harmful Information
• Release to the Client Assistance Program

Release of Information Potentially Harmful to the Customer

Medical, psychological, or other information that the VR counselor believes could be potentially harmful if released to a customer must not be released directly to the customer.

Information considered potentially harmful must be released to the customer through a third party chosen by the individual, designated by an explicit, written consent form signed by the customer using either:

• VR1517-2, Authorization for Release of Confidential Customer Records and Information, or other valid release described in VRSM D-300: Records Management; or
• the customer's own form designating the third party chosen by the individual.

A third party chosen by the individual may include, among others:

• a family member;
• an advocate;
• a qualified mental health professional; or
• a medical professional.

Third parties chosen by individuals are expected to use appropriate professionals, as needed, to discuss potentially harmful information with the customer.

If the customer chooses to designate an individual already named to represent him or her before VR on one of the forms for designating a representative, then, as an exception, the additional consent form described here is not required.

When psychological or psychiatric records are stamped as "not to be shared with the customer," the VR counselor should refer the customer to the psychologist or psychiatrist limiting the distribution of the document.

Release of HIV Test Results

VR staff members must not reveal HIV test results to anyone, including the customer, without the customer's explicit, written, and signed authorization on a valid release. The valid release must specifically authorize the release of HIV test results.

The confidentiality of customer HIV test results is strictly regulated under Texas Health and Safety Code §85.115 and 40 TAC §101.117.

Release to a Designated Mental Health Professional

Psychological information that the VR counselor believes could be harmful if released to the customer may be released to a licensed psychologist whom the customer has designated as the third party chosen by the individual.

Release to a Designated Medical Professional

When the potentially harmful information is related to a medical condition, the representative may be a physician skilled in the diagnosis and treatment of the disorder, among others.

Consultation to Review Potentially Harmful Information

When comparable services and benefits are not available, TWC can pay for a single-visit consultation (in accordance with a medical access program), with a physician or psychologist, to review potentially harmful information with the customer.

Based on 34 CFR §361.38(c)(2).

Release to the Client Assistance Program

A customer may designate the CAP to be the third party chosen by the individual for receiving potentially harmful information.

When releasing records containing mental health information to the CAP, the VR counselor:

• obtains the customer's or court-appointed representative's signature on a valid release; and
• in the description of released records, specifically states that records related to mental health or an intellectual disability are being requested.

A-209-8: Charging for Copies of Customer Records

VR may charge for copies of customer records. For guidance, see the TWC Open Records Unit Manual.

A-209-9: Release for Administration of the Customer's VR Program

The scope of the customer's rehabilitation is determined by the provisions of the customer's IPE.

Releasing customer information for a purpose directly connected with the customer's rehabilitation usually poses no problem. This release does not legally require express or written customer consent. At application, the customer signed VR5061, Notice and Consent for Disclosure of Personal Information.

When it is difficult to ascertain whether the purpose of the release is "directly connected with the customer's rehabilitation program," the VR counselor obtains the customer's written authorization on a valid release to provide information to an organization or individual.

Based on 34 CFR 361.38(b).

Release to an Employer or Prospective Employer

The VR counselor may provide to an employer or prospective employer customer information that the VR counselor considers relevant and appropriate for achieving the customer's employment goals. However, the VR counselor must not divulge any information concerning the customer's disability without the customer's permission to do so.

Additionally, the VR counselor obtains a valid release from the customer to release the information:

• when it is difficult to ascertain whether the information is relevant and appropriate to the customer's employment goals;
• before releasing information from a fingerprinting CCH background check (see A-208-2: Release of Customer Criminal History Records);
• before releasing alcohol and/or drug abuse patient records; and
• before releasing HIV test results.

Release to Another Agency or Organization for Its Program Purposes

Unless the customer information requested by another agency or organization is for a purpose directly connected with the customer's rehabilitation program, the information may be released to another agency or organization for its own program purposes only with specific written customer authorization.

The VR counselor uses VR1516, Notice for Release of Confidential Records for Audit, Research, Evaluation, or Other Program Purposes, and obtains a valid release from the customer.

After receiving a valid release containing the customer's authorization, the VR counselor selects the appropriate checkboxes, signs, and attaches a copy of VR1516 as a cover sheet to the released documents. Individual documents are stamped as explained above.

A-209-10: Release to Law Enforcement, Courts, and Organizations in Emergency Situations

VR releases, with or without written consent, customer information in response to requests involving law enforcement, including official investigations concerning:

• national security violations;
• tax fraud;
• apprehension related to illegal immigration; and
• public assistance fraud.

VR also releases relevant customer information to an authorized state agency and other organizations for reports and investigations required by state law concerning:

• child support enforcement (see public law 93-647);
• child abuse; and
• abuse, exploitation, or neglect of the elderly or disabled.

Under Chapter 614 of the Texas Health and Safety Code, VR must disclose information about a customer when the disclosure supports a program under the Texas Correctional Office on Offenders with Medical or Mental Impairments, and the customer:

• has criminal charges pending;
• has been convicted or adjudicated; or
• is in custody or under any form of criminal justice supervision.

These circumstances require TWC to provide the customer's:

• identity;
• needs, treatment, social, criminal, and vocational history;
• status of and compliance with supervision by a criminal justice agency; and
• mental and medical health history.

Except for emergency situations, or as required by law, the request must be:

• in writing; and
• signed by an appropriate official, stating that the information is required for:
  • an official investigation in connection with the above subjects; or
  • a program under the Texas Correctional Office on Offenders with Medical or Mental Impairments; and
  • the specific information required from the customer's record.

When releasing information to a governmental law enforcement agency, the VR counselor attaches a copy of the request and VR1515, Notice for Release of Confidential Records Pursuant to Legal Process or Investigation, with the second checkbox selected, as a cover sheet to advise the agency of the confidential nature of the documents.

The VR counselor contacts OGC for advice on all requests from law enforcement or other agencies.

Release of Customer Records Pursuant to a Subpoena

TWC releases customer information to a federal or state court, an administrative hearing officer, or a judge when presented with a subpoena, court order, or summons. Valid subpoenas are binding upon TWC, with or without the customer's consent.

If the employee receives a subpoena, the VR counselor immediately contacts OGC directly by emailing Subpoena Requests. The employee notifies his or her immediate VR Supervisor or VR Manager if he or she receives any subpoena, court order, or other summons.

For detailed information on handling subpoenas, see A-207: Confidentiality and Use of Customer Records and Information and OGC Letters on the TWC intranet at Office of General Counsel.

Release to Other Individuals or Organizations in Emergency Situations

Emergency situations are those that pose a threat to the safety of the customer or others. The VR counselor releases only the information necessary to protect the customer or others. A written request is not required if time is of the essence to meet the threat, but the VR counselor or employee providing the information must carefully record all the facts and circumstances in the customer's case file.

The VR counselor contacts OGC for advice on all requests in emergency situations.

A-209-11: Release of Information to Elected Officials

Customer information is released in accordance with federal and state laws when requested by members of the US Congress, the Texas legislature, and other elected officials.

Upon receiving such a request, the VR counselor must forward the pertinent information to:

• the TWC-VR Inquiries Office (see TWC's External Relations Manual, Chapter 2.0, Government Relations), including a copy or complete description of the information requested for release; and
• TWC's External Relations Division, in coordination with OGC.

Then, the VR counselor:

• determines whether the appropriate release has been obtained; and
• notifies the customer in the event that a valid release is required.

A letter signed by a customer and delivered to a member of the legislature or other elected official requesting assistance is a sufficient authorization to release information. However, if the customer's records contain alcohol and drug abuse patient records or HIV test results, the customer must provide TWC with a valid release, and must specifically authorize the release of alcohol and drug abuse patient records or HIV test results. In other instances, if consent cannot be obtained, the VR counselor contacts OGC for advice.

VR staff members must not reveal HIV test results to anyone, including the customer, without the customer's explicit, written, and signed authorization on a valid release.

State law prohibits release by VR of criminal history record information documents received from DPS to members of US Congress, the Texas legislature, or other elected officials. Requesters should be referred to DPS to obtain these records.

Based on Texas Government Code §411.085(a)(2).

A-209-12: Release of Information for Audit and other TWC Purposes

Under certain circumstances, VR may be authorized to release personal information to an organization, agency, or individual engaged in an audit, evaluation, or research for purposes that would significantly improve the quality of life for individuals with disabilities.

When such a request is received, the VR counselor contacts OGC to determine whether VR is authorized to provide the information and to obtain the documentation that must be signed by the recipient when such information is released.

Based on 34 CFR §361.38(d).

Release to Workforce Solutions Offices

Texas Workforce Solutions staff employed by local Workforce Solutions Offices are not VR staff. Therefore, when sharing information about a customer with Workforce Solutions Office staff, a VR1517-2, Authorization for Release of Confidential Customer Records and Information, is required.

A-209-13: Release for Media Purposes

TWC requires written consent from the customer to release, disseminate, and/or use the customer's information—including written or recorded information, photographs, and film or videotape—for print, broadcast, or electronic publication, including social media use. The TWC Media Release form is used to meet this requirement and is located on the TWC Communications Department web page. It is available in both English and Spanish. The signed Media Release Form is kept in the customer's paper case file.

When circumstances arise that involve use of customer information in a media format, VR staff must consult with the unit management team and coordinate with the TWC Communications Department.

For additional information about media and external communications, refer to the TWC Communications Department web page and the TWC External Relations Manual.

Note: A TWC media release form is not required to provide VR services to a customer or for a customer to participate in public events associated with VR services and supports. Signing a TWC media release form is only required if customer information will be shared as described in this section.

A-209-14: Release of Information from a Provider

A provider must not share with a customer documents received from TWC-VR. When a customer requests such documents, the provider must refer the customer to the customer's VR counselor.

A provider may share with a customer documents that relate to the services provided by the provider and that have been signed by the customer or legal guardian.

A-209-15: Records Requests Received From TWC Open Records

Records requests that are received from TWC Open Records must by processed by the receiving VR office within five business days.

The assigned VRC/RA team fills out the VR1514, Request from Open Records, and follows the instructions below:

• Review records for any items to be withheld, such as information harmful to the individual if released regarding certain medical/psychological notations. Release only items within the scope of the authorization and only to those authorized to receive the information.
• Make copies of the records that will be released.
• Sign the Official Certificate and attach it to a copy of the records being released. Open Records does NOT need to see the records before they are provided.
• Make a copy of the signed Official Certificate and retain it in the case file along with a description of the records that are being provided.
• Regardless of what is requested, do NOT answer any questions, complete depositions, or complete affidavits that may arrive as part of the request.
• Do not notarize the certification or other documents.
• If a question or section does not apply, enter "Not Applicable" and explain why. Type or handwrite responses using blue or black ink.
• Return a scanned copy of the VR1514, Request from Open Records, and the signed Official Certificate to Open Records (open.records@twc.texas.gov) via email.

If there are no records available in RHW or in a paper case file that is located in the field office, notify Open Records via email (open.records@twc.texas.gov) within five business days of receipt of this form.

For specific information on policies, procedures, and costs pertaining to open records requests, see the TWC Open Records Unit Manual.

Records in RHW are confidential and can be accessed only for purposes directly associated with the provision of VR services.

Staff must not:

• access their own record of VR services in RHW;
• access RHW records of family members; or
• access any records in RHW for which they do not have an official VR business need.

For the purposes of this section, "family" includes the employee's:

• spouse;
• child;
• parent;
• grandparent;
• brother;
• sister;
• cousin;
• aunt;
• uncle;
• niece; and
• nephew.

"Family" also includes any individual related to the employee by:

• kinship;
• adoption; or
• marriage (such as a step relative, for example, stepchild, stepparent); and
• all related individuals who are dependent upon the employee or employee's family member for personal care or services on a continuing basis; and
• all individuals living in the same household with the employee or with an employee's family member (regardless of kinship).

For more information on ethics see the TWC Personnel Manual, 1.9 Ethics Policy (PDF) and the 2023 Code of Professional Ethics for Rehabilitation Counselors (PDF).

A-213-1: Procedure

When a VR employee or other reliable source is aware of or observes behavior that could pose a threat to other VR employees or to providers, it is important to capture the information as specifically and factually as possible by creating a case note in the customer's case file.

A VR employee creates a case note:

• if at any time during the rehabilitation process a customer verbally or physically threatens someone; or
• if the customer has a recent history of actual or threatened physical abuse.

The employee enters the case note in RHW, under the topic Requires Special Attention.

A case note must include as much information as possible about the incident, including:

• the date;
• the location;
• the names and addresses of witnesses and the people involved;
• what was said or done; and
• the names of those willing to testify.

The employee reports any incident affecting the security of a VR employee or division property to VR management and, if appropriate, to the local law enforcement authority. The employee places a copy of the police report in the paper file if the police were involved.

When other VR employees refer to the customer's online case record, the case note alerts them to use caution when working with the customer. Additional case notes must be entered as needed to maintain an accurate record of potential risks or of changes to the circumstances.

Although it is important to alert others to potential risk, VR employees must exercise extreme care in using a case note titled "Requires Special Attention" to avoid unnecessarily labeling a customer.

A-213-2: Additional Information

TWC supports a safe and secure environment for employees, customers, clients, and visitors conducting business at all TWC locations. TWC has a system in place to ensure that employees report incidents as required by TWC policy.

Examples of incidents include, but are not limited to:

• workplace violence, including domestic violence situations in which the abuser seeks out the victim at work;
• automobile accident involving a state vehicle;
• automobile accident involving a personal vehicle used to conduct official state business;
• physical or sexual assault;
• serious medical emergency, death, or suicide;
• threat of harm to one's self or others;
• terrorist event or civil unrest;
• breach of information systems;
• theft or loss of personal or state property;
• mischievous or malicious destruction of state property;
• fire or hazardous materials event;
• service interruption that is due to an emergency or disaster;
• threat by personal contact, letter, phone, or email;
• intentional business interruption, including false alarms or bomb threats;
• suspicious package or material received by mail or discovered in the workplace; and
• a business disruption that results in activating partial or full continuity of operations activities (assigning staff members to work remotely or securing alternate facilities).

All incidents must be reported immediately as outlined in this policy and the TWC Personnel Manual (PDF).

TWC employees are also subject to state reporting requirements and must:

• know and understand the policy and procedures outlined in this chapter for incident reporting;
• inform their manager or supervisor of any situation described in this policy;
• contact law enforcement or first responders if the incident involves a threat to health or safety;
• follow the procedures in this policy to report incidents, injuries, and automobile accidents; and
• submit copies of all reports to Risk and Security Management (RSM) through the Incident Reports - RSM mailbox.

Local office managers and supervisors:

• ensure that employees know and follow the policy and procedures outlined in this policy for incident reporting;
• know and understand their role in implementing the procedures outlined in this policy;
• inform the appropriate regional program support specialist (RPSS) of incidents;
• follow the procedures to report incidents, injuries, and automobile accidents; and
• submit copies of all reports to the Incident Reports - RSM mailbox.

Headquarters managers and supervisors:

• ensure that employees know and follow the policy and procedures outlined in this policy for incident reporting;
• know and understand their role in implementing the procedures outlined in this policy;
• follow the procedures in this policy to report incidents, injuries, and automobile accidents; and
• submit copies of all reports to the Incident Reports - RSM mailbox.

Regional program support specialists:

• know and understand their role in implementing the procedures outlined in this policy;
• support local office employees who have questions about incidents;
• follow the procedures in this policy to report incidents that occur in regional locations to the RSM staff;
• review incident reports submitted and forward the reports to the Incident Reports - RSM mailbox;
• participate as subject matter experts for their region in meetings, as appropriate;
• coordinate responses from TWC;
• provide updates to the incident commander, as appropriate;
• coordinate with appropriate program managers to ensure continuation of services; and
• act as incident commanders for multiunit incidents in their region.

To report an incident at a local office:

• the employee, manager, or supervisor contacts professional first responders (911) if the incident is an immediate threat to health or safety of individuals or property;
• the employee, manager, or supervisor notifies the RPSS of the incident by telephone;
• the employee notifies a manager or supervisor of the incident; and
• the employee, supervisor, or manager fills out form RSM 3120 (PDF) on the same day or within 48 hours of the incident and forwards it by email to:
  • the RPSS;
  • RSM;
  • program management; and
  • the Incident Reports - RSM mailbox.

If injuries are sustained by employees and nonemployees in conjunction with an incident, the employee must also follow the procedures outlined in the TWC Personnel Manual (PDF).

Note: A manager or supervisor completes this step for nonemployees and for employees who are unable to self-report.

A-213-3: Security Breaches of Confidential Information

TWC defines a confidential information incident as a loss of control, a compromise, an unauthorized disclosure, an unauthorized acquisition, unauthorized access, or any similar situations in which individuals other than authorized users have, for an unauthorized purpose, access or potential access to confidential information, whether physical or electronic. The term "confidential information incident" encompasses suspected and confirmed incidents or breaches, whether intentional or inadvertent, involving confidential information, that raise a reasonable risk of harm.

To report a known or suspected breach of confidential information, the employee follows the procedures in the TWC Personnel Manual (PDF) or on the TWC Privacy Governance page.

Procedures

Upon discovery of a known or suspected breach, the staff member secures any loose papers or electronic devices in a locked drawer or cabinet. If the breach is discovered on the network or in an email, the staff member notes the location or method of access or receipt.

The employee reports the incident to his or her supervisor or, if the supervisor is unavailable or if there is a potential conflict of interest, reports the incident to his or her local privacy liaison or regional field support manager.

To report the incident to TWC's Privacy Office or chief information security officer, the employee uses TWC's Open FISMA site regarding compliance with the Federal Information Security Management Act.

The staff member clicks the "Report a Security Incident" button, then selects Yes for the question "Was PII Involved?" He or she makes at least one entry on each page and then clicks "Submit."

The staff member is aware of common mistakes so that his or her response to a privacy incident does not constitute another incident:

The employee does not forward or reply with compromised information (for example, information such as a Social Security number, full name, or birth date) when reporting.

When the compromised information is needed by the staff member's supervisor for TWC's Privacy Office or chief information security officer to respond to an incident, the staff member will be given instructions on whether the compromised information needs to be forwarded to officials at TWC and how to secure it properly.

A-213-4: Injuries Unrelated to an Incident

To report injuries sustained during routine business activities by employees and nonemployees, the employee follows the procedures outlined in the TWC Personnel Manual (PDF).