Chapter DHS 92
CONFIDENTIALITY OF TREATMENT RECORDS
DHS 92.03 General requirements. DHS 92.04 Disclosure without informed consent. DHS 92.05 Patient access to treatment records. DHS 92.06 Minors and incompetents. DHS 92.07 Privileged communications. DHS 92.08 Criminal commitments. DHS 92.09 Grievance procedure. DHS 92.10 Discipline of employees. DHS 92.11 Employee orientation. DHS 92.12 Retention periods. DHS 92.13 Certification of compliance. Ch. DHS 92 NoteNote: Chapter HSS 92 was renumbered chapter HFS 92 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, September, 1999, No. 525. Chapter HFS 92 was renumbered to chapter DHS 92 under s. 13.92 (4) (b) 1., Stats., and corrections made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635. DHS 92.01(1)(1) Scope. This chapter applies to all records of persons who are receiving treatment or who at any time received treatment for mental illness, developmental disabilities, alcohol abuse or drug abuse from the department, a board established under s. 46.23, 51.42 or 51.437, Stats., or treatment facilities and persons providing services under contract with the department, a board or a treatment facility whether the services are provided through a board or not. Private practitioners practicing individually who are not providing services to boards are not deemed to be treatment facilities and their records are not governed by this chapter. DHS 92.01(2)(2) Statutory authority. This chapter is promulgated pursuant to s. 51.30 (12), Stats., which directs the department to promulgate rules to implement s. 51.30, Stats. DHS 92.01 HistoryHistory: Cr. Register, May, 1984, No. 341, eff. 6-1-84. DHS 92.02DHS 92.02 Definitions. In this chapter: DHS 92.02(2)(2) “Court order” means a lawful order of a court of competent jurisdiction. DHS 92.02(3)(3) “Department” means the department of health services. DHS 92.02(7)(7) “Patient” means any individual who is receiving or who at any time has received services for mental illness, developmental disabilities, alcoholism or drug dependence from the department, a board, a treatment facility, or from persons providing services under contract to the department, a board or a treatment facility. DHS 92.02(8)(8) “Program director” means the administrative director appointed by the board. DHS 92.02(10)(10) “Qualified staff” means only those board staff or department staff who require confidential information for a valid reason connected with their assignment in the administration of services provided by the board or department. DHS 92.02(11)(11) “Service provider” means a person who provides services under contract to the department, a board or a treatment facility, including any employee, consultant, volunteer, agency or organization providing any assessment, treatment or other service or rendering any consultation or opinion regarding any patient assessment, need for service or course of treatment, whether as a contractor, subcontractor or in any other capacity. DHS 92.02(12)(12) “Somatic treatment” means treatment by physical means. DHS 92.02 NoteNote: Somatic treatments include administration of medications, psychosurgery and electroconvulsive shock.
DHS 92.02(13)(13) “Treatment” has the meaning designated in s. 51.01 (17), Stats., namely, those psychological, educational, social, chemical, medical or somatic techniques designed to bring about rehabilitation of a mentally ill, alcoholic, drug dependent or developmentally disabled person. DHS 92.02(14)(14) “Treatment director” has the meaning designated in s. 51.01 (18), Stats., except that in a hospital as defined under s. 50.33 (2) (a), Stats., the treatment director is the patient’s primary physician. DHS 92.02(15)(15) “Treatment facility” has the meaning designated in s. 51.01 (19), Stats., namely, any publicly or privately operated facility or unit of a facility providing treatment of alcoholic, drug dependent, mentally ill or developmentally disabled persons, including but not limited to inpatient and outpatient treatment programs and rehabilitation programs. DHS 92.02(16)(16) “Treatment records” has the meaning designated in s. 51.30 (1) (b), Stats., namely, all records concerning individuals who are receiving or who at any time have received services for mental illness, developmental disabilities, alcoholism, or drug dependence which are maintained by the department, by boards and their staffs, and by treatment facilities. “Treatment records” include written, computer, electronic and microform records, but do not include notes or records maintained for personal use by an individual providing treatment services for the department, a board, or a treatment facility if the notes or records are not available to others. DHS 92.02 HistoryHistory: Cr. Register, May, 1984, No. 341, eff. 6-1-84; correction in (3) made under s. 13.92 (4) (b) 6., Stats., Register November 2008 No. 635. DHS 92.03(1)(a)(a) All treatment records or spoken information which in any way identifies a patient are considered confidential and privileged to the subject individual. DHS 92.03(1)(b)(b) If notes or records maintained for personal use are to be made available to other persons, they shall be placed in the treatment record, become part of that record and be governed by this chapter. DHS 92.03(1)(c)(c) The department and every board, treatment facility and service provider shall designate in writing one or more persons to serve as record custodians. DHS 92.03(1)(d)(d) The department and every board, treatment facility and service provider shall develop a notice describing the agency’s treatment record access procedures. The notice shall be prominently displayed and made available for inspection and copying. DHS 92.03(1)(e)(e) Information requests shall be filled as soon as practicable. If a request is denied, specific reasons shall be given for denying the request. DHS 92.03(1)(f)(f) No personally identifiable information contained in treatment records may be released in any manner, including oral disclosure, except as authorized under s. 51.30, Stats., this chapter or as otherwise provided by law. DHS 92.03(1)(g)(g) Whenever requirements of federal law regarding alcoholism and drug dependence services in 42 CFR Part 2 require restrictions on the disclosure of treatment records greater than the restrictions required by this section, the federal requirements shall be observed. DHS 92.03(1)(h)(h) No personally identifiable information in treatment records may be re-released by a recipient of the treatment record unless re-release is specifically authorized by informed consent of the subject individual, by this chapter or as otherwise required by law. DHS 92.03(1)(i)(i) Any disclosure or re-release, except oral disclosure, of confidential information shall be accompanied by a written statement which states that the information is confidential and disclosure without patient consent or statutory authorization is prohibited by law. DHS 92.03(1)(j)(j) Members and committees of boards shall not have access to treatment records. In meetings of boards and board committees, the program directors shall ensure that patient identities are not revealed or made obvious by description of particular patient situations. DHS 92.03(1)(k)(k) All treatment records shall be maintained in a secure manner to ensure that unauthorized persons do not have access to the records. DHS 92.03(1)(L)(L) Pupil records of minor patients in educational programs within treatment facilities, which are disclosed pursuant to s. 118.125, Stats., shall not contain any information from other treatment records unless there is specific informed consent for release of that information as required under s. DHS 92.06. DHS 92.03(1)(m)(m) No treatment record information may be released to a person previously unknown to the agency unless there is reasonable assurance regarding the person’s identity. DHS 92.03(1)(n)(n) Whenever information from treatment records is disclosed, that information shall be limited to include only the information necessary to fulfill the request. DHS 92.03(1)(o)(o) Any request by a treatment facility for written information shall include a statement that the patient has the right of access to the information as provided under ss. DHS 92.05 and 92.06. DHS 92.03(1)(p)(p) The conditions set forth in this section shall be broadly and liberally interpreted in favor of confidentiality to cover a record in question. DHS 92.03 NoteNote: If a person requesting information does not qualify for it under the section cited in this chapter, other sections should be reviewed to determine if the requester qualifies under another section.
DHS 92.03(2)(2) Disclosure of patient status in response to inquiries. DHS 92.03(2)(a)(a) No person may disclose information or acknowledge whether an individual has applied for, has received or is receiving treatment except with the informed consent of the individual, as authorized under s. 51.30 (4) (b), Stats., or as otherwise required by law and as governed by this subsection. DHS 92.03(2)(b)(b) The department and each board and treatment facility shall develop written procedures which include a standard, noncommittal response to inquiries regarding whether or not a person is or was receiving treatment. All staff who normally deal with patient status inquiries shall be trained in the procedures. DHS 92.03(3)(3) Informed consent. Informed consent shall be in writing and shall comply with requirements specified in s. 51.30 (2), Stats., and this subsection. DHS 92.03(3)(a)(a) Informed consent shall be valid only if voluntarily given by a patient who is substantially able to understand all information specified on the consent form. A guardian may give consent on behalf of the guardian’s ward. If the patient is not competent to understand and there is no guardian, a temporary guardian shall be sought in accordance with s. 54.50, Stats. DHS 92.03(3)(b)(b) Informed consent is effective only for the period of time specified by the patient in the informed consent document. DHS 92.03(3)(c)(c) A copy of each informed consent document shall be offered to the patient or guardian and a copy shall be maintained in the treatment record. DHS 92.03(3)(d)(d) Each informed consent document shall include a statement that the patient has a right to inspect and receive a copy of the material to be disclosed as required under ss. DHS 92.05 and 92.06. DHS 92.03(3)(e)(e) Any patient or patient representative authorized under s. 51.30 (5), Stats., may refuse authorization or withdraw authorization for disclosure of any information at any time. If this occurs, an agency not included under s. 51.30 (4) (b), Stats., that requests release of information requiring informed consent shall be told only that s. 51.30, Stats., prohibit release of the information requested. DHS 92.03(4)(a)(a) Consent for the release of treatment records of a deceased patient may be given by an executor, administrator or other court-appointed personal representative of the estate. DHS 92.03(4)(b)(b) If there is no appointment of a personal representative, the consent may be given by the patient’s spouse or, if there is none, by any responsible member of the patient’s family. DHS 92.03(4)(c)(c) Disclosures required under federal or state laws involving the collection of death statistics and other statistics may be made without consent. DHS 92.03 HistoryHistory: Cr. Register, May, 1984, No. 341, eff. 6-1-84; correction in (3) (a) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635. DHS 92.04DHS 92.04 Disclosure without informed consent. DHS 92.04(1)(a)(a) Treatment records may be disclosed for management audits, financial audits or program monitoring and evaluation but only as authorized under s. 51.30 (4) (b) 1., Stats., and this subsection. DHS 92.04(1)(b)(b) A record of all audits and evaluations shall be maintained at each treatment facility. DHS 92.04(1)(c)(c) Auditors and evaluators shall provide the treatment facility with written documentation regarding their authority to audit or evaluate by reference to statutes, administrative rules or certification by the department. DHS 92.04(2)(a)(a) Treatment records may be released for billing or collection purposes only as authorized under s. 51.30 (4) (b) 2., Stats., and this subsection.
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