Chapter DHS 92

Ch. DHS 92 Note Note: 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 DHS 92.01 Introduction.

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 History History: Cr. Register, May, 1984, No. 341, eff. 6-1-84.

DHS 92.02 DHS 92.02 Definitions. In this chapter:

DHS 92.02(1) (1) “Board” means the community board established under s. 46.23, 51.42 or 51.437, Stats.

DHS 92.02(1)(a) (a) “51-board” means a community board established under s. 51.42 or 51.437, Stats.

DHS 92.02(1)(b) (b) “Human services board” means a combined board established under s. 46.23, Stats.

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(4) (4) “Director” has the meaning designated in s. 51.01 (6), Stats.

DHS 92.02(5) (5) “Discharge” has the meaning designated in s. 51.01 (7), Stats.

DHS 92.02(6) (6) “Inpatient facility” has the meaning designated in s. 51.01 (10), Stats.

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(9) (9) “Pupil records” has the meaning designated in s. 118.125 (1) (d), Stats.

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 Note Note: 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 History History: 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 DHS 92.03 General requirements.

DHS 92.03(1) (1) Treatment records.

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 Note Note: 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) (4) Release of treatment records after death.

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 History History: 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 92.04 DHS 92.04 Disclosure without informed consent.

DHS 92.04(1) (1) Audits and evaluation.

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) (2) Billing or collection.

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.

DHS 92.04(2)(b) (b) Any information specified in ch. DHS 1 may be released to the collection authority under ss. 46.03 (18) and 46.10, Stats.

DHS 92.04 Note Note: Under ss. 46.03 (18) and 46.10, Stats., the department is the collection authority for all services provided by the department or boards. Where collection authority has not been delegated, the department’s bureau of collections is the only qualified service organization for collections allowed by Wisconsin law. Where collections have been delegated, boards or facilities are agencies of the department for billing and collection purposes.

DHS 92.04(2)(c) (c) Patient information may be released to county departments of public welfare or social services only in accordance with the provisions of sub. (13).

DHS 92.04(2)(d) (d) Patient information may be released to third-party payers only with informed consent.

DHS 92.04(2)(e) (e) Each agency with billing and collection responsibility shall develop further written procedures as needed to ensure confidentiality of billing and collection information. These procedures shall be made available to the department upon request.

DHS 92.04 Note Note: Further confidentiality provisions on billing and collections are specified in ss. DHS 1.05 and 1.06.

DHS 92.04(3) (3) Research. Treatment records may be released for purposes of research only as authorized under s. 51.30 (4) (b) 3., Stats.

DHS 92.04(4) (4) Court order.

DHS 92.04(4)(a) (a) Treatment records may be released pursuant to a lawful court order only as authorized under s. 51.30 (4) (b) 4, Stats., and this subsection.

DHS 92.04 Note Note: If a treatment facility director, program director or department official believes that the court order is unlawful, that person should bring the order to the attention of his or her agency’s legal counsel.

DHS 92.04(4)(b) (b) A subpoena, unless signed by a judge of a court of record, is not sufficient to authorize disclosure.

DHS 92.04(4)(c) (c) A court order regarding confidential drug or alcohol treatment information shall be in compliance with 42 CFR Part 2, Subpart E.

DHS 92.04 Note Note: When a subpoena signed by an attorney or the clerk of court requires the record custodian to appear at the hearing with the records, the custodian should assert the privilege and refuse to turn the records over until ordered to do so by the circuit judge.

DHS 92.04(5) (5) Progress determination and adequacy of treatment.

DHS 92.04(5)(a) (a) Treatment records may be made accessible to department and board staff to determine progress and adequacy of treatment or to determine whether a person should be transferred, discharged or released, but only as authorized under s. 51.30 (4) (b) 5., Stats., and this subsection.

DHS 92.04(5)(b) (b) Treatment information as specified under s. 51.30 (4) (b) 10, Stats., may also be released to the following state employees and department board members concerning persons under their jurisdiction:

DHS 92.04(5)(b)1. 1. Members of the parole board;

DHS 92.04(5)(b)2. 2. Members of the special review board for sex crimes;

DHS 92.04(5)(b)3. 3. Employees of the juvenile offender review program; and

DHS 92.04(5)(b)4. 4. Members of the juvenile corrections reception center’s joint planning and review committee.

DHS 92.04(6) (6) Within the treatment facility.

DHS 92.04(6)(a) (a) Treatment records maintained in the facility or as computerized records by the provider of data-processing services to the facility may be made available to treatment staff within the facility only as authorized under s. 51.30 (4) (b) 6., Stats., and this subsection.

DHS 92.04(6)(b) (b) Confidential information may be released to students or volunteers only if supervised by staff of the facility.