March 4, 2004; Minnesota Department of Employment and Economic Development
3/4/2004 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:On January 14, 2004, IPAD received a letter dated January 1, 2004, from X. In X's letter, X asked the Commissioner to issue an advisory opinion regarding a possible violation of his/her rights under Minnesota Statutes, Chapter 13, by the Minnesota Department of Employment and Economic Development (DEED). X asserts his/her rights were violated by the Vocational Rehabilitation unit of DEED. The Commissioner notes that Vocational Rehabilitation previously was part of the Minnesota Department of Economic Security. In response to X's request, IPAD, on behalf of the Commissioner, wrote to Matt Kramer, Commissioner of DEED. The purposes of this letter, dated January 16, 2004, were to inform him of X's request and to ask him to provide information or support for DEED's position. On February 10, 2004, IPAD received a response, dated February 11, 2004, from Julie Leppink, Assistant Attorney General. A summary of the facts as presented by X is as follows. Regarding the first issue X asked the Commissioner to address, X wrote: On 6/29/00 I applied, and was accepted for services at VR [Vocational Rehabilitation, a unit within DEED] based on my hearing impairment. After I had been accepted for services, at one of my first meetings, [VR staff] asked me to sign several blank release of information forms for further services. I was under the impression that I was signing forms for VR to share data already in existence in my VR file, with providers for other services, such as peer counseling, or for education on hearing loss. I agreed to do this. On the forms [VR staff] handed me to sign, there were no boxes checked and there was no information written in. The boxes: to obtain/release information from/to... were not filled in. There was no information of any organization that she might ask to provide data or with whom she might share data. [VR staff] asked me to fill in my birthdate and social security number and sign and date it, which I did. I was not told that this [VR staff] would be using these forms to obtain medical records. I am aware that my medical records contain almost a year's worth of psychotherapy notes. I do not sign any release forms for medical records due to this fact. I told [VR staff] that I would try to bring in records regarding my hand disability, but that I hadn't been to the doctor for my hand in years. I told her I might be able to get something from my primary care doctor, and I would bring those medical records myself, the way I had brought my audiogram with me. I had already been accepted for services based on my audiogram, and I understood that this further information she was asking for regarding my hand disability was just helpful information to her and was not necessary for services or eligibility. [VR staff] noted, in 2 places in my client notes that I told her I wanted to bring in medical records myself. I had no reason to believe she would use the blank release forms to obtain medical records in violation of my expressed wishes. However, on 9/26/00, she did just that. In violation of my expressed wishes, and the day after she noted for the second time, that [X] wanted to obtain the records [him/herself] , [staff] filled in the blank forms I had signed, and used them to obtain hundreds of pages of medical records without any limitation or discretion as to the content, from Mayo Clinic and Fairview Hospital. These records include psychotherapy notes from 5 years prior, and hundreds of pages of other medical records that also did not pertain in any way to my relationship with VR.... Regarding the second issue X asked the Commissioner to address, X wrote: I did not use the offered services, as I got a full time [job]....In 2002, after my hearing deteriorated further, I left my position, returned to VR, and met with [VR staff] on March 19, 2003. At this meeting, [VR staff] told me he would like to send me for vocational interest and abilities testing. In actuality, [VR staff] ordered a psychological assessment from a 3rd party vendor....I was not given any type of Tennessen Warning alerting me to the type of data he was requesting me to provide, other than his verbal statement that he was sending me for vocational interest testing.... [VR staff] did not ask me to sign a release of information form for this vendor at our meeting. Instead, he sent me an email on 3/24/03 at 12:55 pm, saying he was going to mail me some things, and asking me to sign them and return them as soon as possible. He sent me two forms in the US mail. I received these forms, signed and returned them to him on 3/26/03. One form was a release of information agreement for peer counseling, that later was not needed. The second form was for release/exchange of information for Gary Fischler and Associates. When he sent me this form, the box for Fischler and Associates was filled in and [VR staff's] name was printed. It had these boxes checked: Name, Address, Phone Number, Birthdate, Social Security Number, Skills and Work Qualifications, Work History, Reasonable Accommodation Needed, and the box for Coordinate or provide services to me was checked and underlined. There was an X in the Signature box and the printed word Date was circled. I signed and dated this release/exchange agreement on 3/26/03 and put the date 6/30/03 in the line this consent is good for one year or until: ...At 9:38 in the morning, over 3 hours before he informed me he was sending me some things in the mail he wanted me to sign, and at least 3 days before he received my consent to release private data information, [VR staff] wrote an email to Gary Fischler containing a good deal of private, including information that would easily identify me. ...all without any consent for release of information from me, and days before I even knew the name or existence of this vendor. Gary Fischler wrote back to [VR staff] immediately that day....All of this information (personal and some of it incorrect) was shared without any consent from me, and was damaging to me in many ways. I received the forms, and signed them and returned them on 3/26/03. [VR staff] could not have received the release of information agreement until at least 3 days after he had already shared this private data. I believe this violated my rights under Minnesota Statutes Chapter 13. I believe it also violated the policies the VR has in place prohibiting the sharing of private data when making referrals to 3rd party vendors. Page 11-9 of the VR Policy and Procedure Manual states, A consent for release of information must also be obtained to discuss private data with a potential service provider prior to making a referral .... Issues:In his/her request for an opinion, X asked the Commissioner to address the following issues:
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Data subjects
Educational data
Informed consent
Tennessen warning
Tennessen distinction
Necessary to administer a program authorized by law (13.05, subd. 3)
Relationship of informed consent to Tennessen warning
Vocational rehabilitation data