Wisconsin Legislature: DHS 92.05(1)(b)

(11) Counsel, guardian ad litem, counsel for the interests of the public, court-appointed examiner.

(a) Treatment records or portions of treatment records may be made accessible to the patient’s counsel or guardian ad litem only as authorized under s. 51.30 (4) (b) 11., Stats., and this section, and to the court appointed examiner only as authorized under s. 51.20 (9) (a), Stats., and this section.

(b) A patient’s attorney or guardian ad litem, or both, shall have access to alcohol and drug abuse patient treatment records only as authorized under 42 CFR 2.15 and 2.35.

(c) At times other than during normal working hours, patients’ attorneys or guardians ad litem, or both, shall have access to those records directly available to staff on duty.

(d) Counsel for the interests of the public may have access to alcohol or drug abuse treatment records only with informed consent of the patient or as authorized under 42 CFR 2.61 to 2.67.

(e) A copy of the records shall be provided upon request. At times other than normal working hours, copies shall be provided only if copy equipment is reasonably available.

(12) Notice to correctional officer of change in status.

(a) A treatment facility shall notify the correctional officer of any change in the patient’s status as required under s. 51.30 (4) (b) 12., Stats.

(b) Release of information from records of alcohol and drug abuse patients shall be in compliance with 42 CFR Part 2, Subpart C.

(13) Between a social services department and a 51 board.

(a) Limited confidential information may be released between a social service department and a 51-board, but only as authorized under s. 51.30 (4) (b) 15., Stats.

(b) Limited confidential information regarding alcohol and drug abuse patients may be released between a social services department and a 51-board only with the patient’s informed consent as authorized under 42 CFR 2.31 and with a qualified service agreement under 42 CFR 2.11 (n) and (p).

(14) Between sub-units of a human services department and between the human services department and contracted service providers. Confidential information may be exchanged between sub-units of a human services department, which is the administrative staff of a board organized under s. 46.23, Stats., and between the human services department and service providers under contract to the human services department, as authorized under s. 46.23 (3) (e), Stats.

(15) Release to law enforcement officers. Release of limited confidential information to law enforcement officers without a patient’s informed consent is permitted only to enable a law enforcement officer to take charge of and return a patient on unauthorized absence from the treatment facility, pursuant to s. 51.39, Stats., to enable a law enforcement officer to determine if an individual is on unauthorized absence from the treatment facility, pursuant to s. 51.30 (4) (cm), Stats., or by order of a court.

(a) The treatment director may disclose only the following information to the law enforcement officer acting pursuant to s. 51.39, Stats.:

1. Date, time and manner of escape;

2. Description and picture of the patient;

3. Addresses and phone numbers of relatives or other persons who might be contacted by the patient; and

4. Any other information determined by the treatment director to be of assistance in locating the patient, including advice regarding any potential danger involved in taking custody of the patient.

(b) Any access by law enforcement officers to confidential records other than as provided for in par. (a) and s. 51.30 (4) (cm), Stats., requires a court order.

1. A court order authorizing access to alcoholism or drug dependence treatment records shall comply with the requirements of 42 CFR 2.61 to 2.67.

2. A subpoena, unless signed by a judge of a court of record, does not authorize disclosure of treatment records.

(c) Access to treatment records is not authorized for any local, state or federal investigatory agency conducting pre-employment or other clearances or investigating crimes unless the agency presents a statement signed by the patient giving informed consent or a court order.

(d) Access by law enforcement authorities, when allowed pursuant to informed consent or court order, shall always pertain to a specific situation or case. In any situation involving court orders which appear to give authorization for broad or blanket access to records, the treatment director, the program director or the secretary of the department or designee shall seek appropriate legal counsel before disclosing any records.

(16) Unauthorized absence. Information from treatment records of patients admitted under s. 971.14 or 971.17, Stats., or under ch. 975, Stats., or transferred under s. 51.35 (3) or 51.37, Stats., and who are on unauthorized absence from a treatment facility, may be released only as authorized under s. 51.30 (4) (b) 12m., Stats.

History: Cr. Register, May, 1984, No. 341, eff. 6-1-84; corrections in (2) (b), (15) (intro.) and (b) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; CR 20-067: am. (11) (a) Register December 2021 No. 792, eff. 1-1-22.

DHS 92.05 Patient access to treatment records.

(1) Access during treatment.

(a) Every patient shall have access to his or her treatment records during treatment to the extent authorized under s. 51.30 (4) (d) 1., Stats., and this subsection.

(b) The treatment facility director or designee may only deny access to treatment records other than records of medication and somatic treatment.

1. Denial may be made only if the director has reason to believe that the benefits of allowing access to the patient are outweighed by the disadvantages of allowing access.

2. The reasons for any restriction shall be entered into the treatment record.

(c) Each patient, patient’s guardian and parent of a minor patient shall be informed of all rights of access upon admission or as soon as clinically feasible, as required under s. 51.61 (1) (a), Stats., and upon discharge as required under s. 51.30 (4) (d) 4., Stats. If a minor is receiving alcohol or other drug abuse treatment services, the parents shall be informed that they have a right of access to the treatment records only with the minor’s consent or in accordance with 42 CFR 2.15.

(d) The secretary of the department or designee, upon request of a director, may grant variances from the notice requirements under par. (c) for units or groups or patients who are unable to understand the meaning of words, printed material or signs due to their mental condition but these variances shall not apply to any specific patient within the unit or group who is able to understand. Parents or guardians shall be notified of any variance.

(2) Access after discharge for inspection of treatment records.

(a) After discharge from treatment, a patient shall be allowed access to inspect all of his or her treatment records with one working day notice to the treatment facility, board or department, as authorized under s. 51.30 (4) (d) 3., Stats., and this subsection.

(b) A patient making a request to inspect his or her records shall not be required to specify particular information. Requests for “all information” or “all treatment records” shall be acceptable.

(c) When administrative rules or accreditation standards permit the treatment facility to take up to 15 days or some other specified period after discharge to complete the discharge summary, the discharge summary need not be provided until it is completed in accordance with those rules or standards.

(3) Copies of treatment records.

(a) After being discharged a patient may request and shall be provided with a copy of his or her treatment records as authorized by s. 51.30 (4) (d), Stats., and as specified in this subsection.

(b) Requests for information under this subsection shall be processed within 5 working days after receipt of the request.

(c) A uniform and reasonable fee may be charged for a copy of the records. The fee may be reduced or waived, as appropriate, for those clients who establish inability to pay.

(d) The copy service may be restricted to normal working hours.

(4) Modification of treatment records.

(a) A patient’s treatment records may be modified prior to inspection by the patient but only as authorized under s. 51.30 (4) (d) 3., Stats., and this subsection.

(b) Modification of a patient’s treatment records prior to inspection by the patient shall be as minimal as possible.

1. Each patient shall have access to all information in the treatment record, including correspondence written to the treatment facility regarding the patient, except that these records may be modified to protect confidentiality of other patients.

2. The names of the informants providing the information may be withheld but the information itself shall be available to the patient.

(c) Under no circumstances may an entire document or acknowledgement of the existence of the document be withheld from the patient in order to protect confidentiality of other patients or informants.

(d) Any person who provides or seeks to provide information subject to a condition of confidentiality shall be told that the provided information will be made available to the patient although the identity of the informant will not be revealed.

(e) The identity of an informant providing information and to whom confidentiality has not been pledged shall be accessible to the patient as provided under this chapter.

(5) Correction of factual information.

(a) Correction of factual information in treatment records may be requested by persons authorized under s. 51.30 (4) (f), Stats., or by an attorney representing any of those persons. Any requests, corrections or denial of corrections shall be in accordance with s. 51.30 (4) (f), Stats., and this section.

(b) A written request shall specify the information to be corrected and the reason for correction and shall be entered as part of the treatment record until the requested correction is made or until the requester asks that the request be removed from the record.

(c) During the period that the request is being reviewed, any release of the challenged information shall include a copy of the information change request.

(d) If the request is granted, the treatment record shall be immediately corrected in accordance with the request. Challenged information that is determined to be completely false, irrelevant or untimely shall be marked through and specified as incorrect.

(e) If the request is granted, notice of the correction shall be sent to the person who made the request and, upon his or her request, to any specified past recipient of the incorrect information.

(f) If investigation casts doubt upon the accuracy, timeliness or relevance of the challenged information, but a clear determination cannot be made, the responsible officer shall set forth in writing his or her doubts and both the challenge and the expression of doubt shall become part of the record and shall be included whenever the questionable information is released.

(g) If the request is denied, the denial shall be made in writing and shall include notice to the person that he or she has a right to insert a statement in the record disputing the accuracy or completeness of the challenged information included in the record.

(h) Statements in a treatment record which render a diagnosis are deemed to be judgments based on professional expertise and are not open to challenge.

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

DHS 92.06 Minors and incompetents.

(1) Obtaining informed consent for release of information from the treatment records of minors, including developmentally disabled minors, and of incompetents and granting access by the parent or guardian and by the minor to treatment records shall be in accordance with s. 51.30 (5), Stats., and this section.

(2) Information may be released from the alcohol or drug abuse treatment records of a minor only with the consent of both the minor and the minor’s parent, guardian or person in the place of a parent, except that outpatient or detoxification services information, with the qualifications about these services indicated in s. 51.47 (2), Stats., shall be disclosed only with the consent of the minor provided that the minor is 12 years of age or older.

Note: Section 42 CFR 2.14 (b) provides that when a minor under state law can obtain treatment for alcohol abuse or drug abuse without the parent or guardian’s approval, as under s. 51.47, Stats., only the minor’s consent is required for disclosure of information from records of that treatment.

(3) A developmentally disabled minor aged 14 or older shall be notified of the right to file a written objection to access to treatment records by his or her parent, guardian or person in place of parent and that notice shall be documented in the treatment record.

(4) All sections of this chapter that are applicable to adults shall apply to any access to treatment records and disclosure of information from treatment records when the patient ceases to be a minor.

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

DHS 92.07 Privileged communications. Communications between a physician or psychologist and patient or between an attorney and a client shall be privileged.

Note: Federal regulations regarding alcohol and drug dependence treatment records do not recognize the statutory exceptions to the physician and psychologist privilege in s. 905.04, Stats., or the attorney privilege in s. 905.03, Stats., but require either informed consent or a court order under 42 CFR 2.61 to 2.67 for disclosure of confidential information.

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

DHS 92.08 Criminal commitments. Treatment records of persons committed under chs. 971 and 975, Stats., are covered by s. 51.30, Stats., and this chapter. Treatment records of persons sentenced to correctional facilities under criminal statutes and not receiving services from a board or a state mental health institute are not covered.

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

DHS 92.09 Grievance procedure. Any failure to comply with provisions of s. 51.30, Stats., or this chapter may be processed as a grievance under s. 51.61 (5), Stats., as provided in s. 51.30 (8), Stats.

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

DHS 92.10 Discipline of employees. Employees of the department, board, or public treatment facilities who violate requirements under s. 51.30, Stats., or this chapter may be disciplined in accordance with s. 51.30 (11), Stats.

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

DHS 92.11 Employee orientation. Directors and program directors shall ensure that persons whose regular duties include requesting, distributing, or granting access to treatment records are aware of their responsibility to maintain the confidentiality of information protected by this chapter and of the criminal and civil liabilities for violations of s. 51.30, Stats.

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

DHS 92.12 Retention periods.

(1) Treatment records shall be retained for at least 7 years after treatment has been completed, unless under this section they are to be retained for a longer period of time.

(2) In the case of a minor, records shall be retained until the person becomes 19 years of age or until 7 years after treatment has been completed, whichever is longer.

(3) Any record undergoing federal or state audit shall be maintained until completion of the audit.

(4) Records relating to legal actions shall be maintained until completion of the legal action.

(5) Records relating to billing or collections shall be maintained for periods of time specified in s. DHS 1.06.

History: Cr. Register, May, 1984, No. 341, eff. 6-1-84; correction in (5) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 92.13 Certification of compliance. Each board shall include a clause in every purchase of service contract which states that the service provider agrees to abide by the requirements of this chapter.

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