146.817(2)(a)(a) Unless a health care provider has first made and preserved a microfilm copy of a patient's fetal monitor tracing, the health care provider may delete or destroy part or all of the patient's fetal monitor tracing only if 35 days prior to the deletion or destruction the health care provider provides written notice to the patient.
146.817(2)(b)
(b) If a health care provider has made and preserved a microfilm copy of a patient's fetal monitor tracing and if the health care provider has deleted or destroyed part or all of the patient's fetal monitor tracing, the health care provider may delete or destroy part or all of the microfilm copy of the patient's fetal monitor tracing only if 35 days prior to the deletion or destruction the health care provider provides written notice to the patient.
146.817(2)(c)
(c) The notice specified in
pars. (a) and
(b) shall be sent to the patient's last-known address and shall inform the patient of the imminent deletion or destruction of the fetal monitor tracing or of the microfilm copy of the fetal monitor tracing and of the patient's right, within 30 days after receipt of notice, to obtain the fetal monitor tracing or the microfilm copy of the fetal monitor tracing from the health care provider.
146.817(2)(d)
(d) The notice requirements under this subsection do not apply after 5 years after a fetal monitor tracing was first made.
146.817 History
History: 1987 a. 27,
399,
403.
146.819
146.819
Preservation or destruction of patient health care records. 146.819(1)(1) Except as provided in
sub. (4), any health care provider who ceases practice or business as a health care provider or the personal representative of a deceased health care provider who was an independent practitioner shall do one of the following for all patient health care records in the possession of the health care provider when the health care provider ceased business or practice or died:
146.819(1)(a)
(a) Provide for the maintenance of the patient health care records by a person who states, in writing, that the records will be maintained in compliance with
ss. 146.81 to
146.835.
146.819(1)(b)
(b) Provide for the deletion or destruction of the patient health care records.
146.819(1)(c)
(c) Provide for the maintenance of some of the patient health care records, as specified in
par. (a), and for the deletion or destruction of some of the records, as specified in
par. (b).
146.819(2)
(2) If the health care provider or personal representative provides for the maintenance of any of the patient health care records under
sub. (1), the health care provider or personal representative shall also do at least one of the following:
146.819(2)(a)
(a) Provide written notice, by 1st class mail, to each patient or person authorized by the patient whose records will be maintained, at the last-known address of the patient or person, describing where and by whom the records shall be maintained.
146.819(2)(b)
(b) Publish, under
ch. 985, a class 3 notice in a newspaper that is published in the county in which the health care provider's or decedent's health care practice was located, specifying where and by whom the patient health care records shall be maintained.
146.819(3)
(3) If the health care provider or personal representative provides for the deletion or destruction of any of the patient health care records under
sub. (1), the health care provider or personal representative shall also do at least one of the following:
146.819(3)(a)
(a) Provide notice to each patient or person authorized by the patient whose records will be deleted or destroyed, that the records pertaining to the patient will be deleted or destroyed. The notice shall be provided at least 35 days prior to deleting or destroying the records, shall be in writing and shall be sent, by 1st class mail, to the last-known address of the patient to whom the records pertain or the last-known address of the person authorized by the patient. The notice shall inform the patient or person authorized by the patient of the date on which the records will be deleted or destroyed, unless the patient or person retrieves them before that date, and the location where, and the dates and times when, the records may be retrieved by the patient or person.
146.819(3)(b)
(b) Publish, under
ch. 985, a class 3 notice in a newspaper that is published in the county in which the health care provider's or decedent's health care practice was located, specifying the date on which the records will be deleted or destroyed, unless the patient or person authorized by the patient retrieves them before that date, and the location where, and the dates and times when, the records may be retrieved by the patient or person.
146.819(4)
(4) This section does not apply to a health care provider that is any of the following:
146.819(4)(a)
(a) A community-based residential facility or nursing home licensed under
s. 50.03.
146.819(4)(f)
(f) A local health department, as defined in
s. 250.01 (4), that ceases practice or business and transfers the patient health care records in its possession to a successor local health department.
146.819 History
History: 1991 a. 269;
1993 a. 27;
1999 a. 9.
146.819 Cross-reference
Cross Reference: See also ch.
Med 21, Wis. adm. code.
146.82
146.82
Confidentiality of patient health care records. 146.82(1)(1)
Confidentiality. All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient. This subsection does not prohibit reports made in compliance with
s. 146.995,
253.12 (2) or
979.01; testimony authorized under
s. 905.04 (4) (h); or releases made for purposes of health care operations, as defined in
45 CFR 164.501, and as authorized under
45 CFR 164, subpart E.
146.82(2)
(2) Access without informed consent. 146.82(2)(a)(a) Notwithstanding
sub. (1), patient health care records shall be released upon request without informed consent in the following circumstances:
146.82(2)(a)1.
1. To health care facility staff committees, or accreditation or health care services review organizations for the purposes of conducting management audits, financial audits, program monitoring and evaluation, health care services reviews or accreditation.
146.82(2)(a)2.
2. To the extent that performance of their duties requires access to the records, to a health care provider or any person acting under the supervision of a health care provider or to a person licensed under
s. 146.50, including medical staff members, employees or persons serving in training programs or participating in volunteer programs and affiliated with the health care provider, if any of the following is applicable:
146.82(2)(a)2.b.
b. The person is being consulted regarding the health of the patient.
146.82(2)(a)2.c.
c. The life or health of the patient appears to be in danger and the information contained in the patient health care records may aid the person in rendering assistance.
146.82(2)(a)2.d.
d. The person prepares or stores records, for the purposes of the preparation or storage of those records.
146.82(2)(a)3.
3. To the extent that the records are needed for billing, collection or payment of claims.
146.82(2)(a)5.
5. In response to a written request by any federal or state governmental agency to perform a legally authorized function, including but not limited to management audits, financial audits, program monitoring and evaluation, facility licensure or certification or individual licensure or certification. The private pay patient, except if a resident of a nursing home, may deny access granted under this subdivision by annually submitting to a health care provider, other than a nursing home, a signed, written request on a form provided by the department. The provider, if a hospital, shall submit a copy of the signed form to the patient's physician.
146.82(2)(a)6.
6. For purposes of research if the researcher is affiliated with the health care provider and provides written assurances to the custodian of the patient health care records that the information will be used only for the purposes for which it is provided to the researcher, the information will not be released to a person not connected with the study, and the final product of the research will not reveal information that may serve to identify the patient whose records are being released under this paragraph without the informed consent of the patient. The private pay patient may deny access granted under this subdivision by annually submitting to the health care provider a signed, written request on a form provided by the department.
146.82(2)(a)7.
7. To a county agency designated under
s. 46.90 (2) or other investigating agency under
s. 46.90 for purposes of
s. 46.90 (4) (a) and
(5) or to the county protective services agency designated under
s. 55.02 for purposes of
s. 55.043. The health care provider may release information by initiating contact with the county agency or county protective services agency without receiving a request for release of the information from the county agency or county protective services agency.
146.82(2)(a)8.
8. To the department under
s. 255.04. The release of a patient health care record under this subdivision shall be limited to the information prescribed by the department under
s. 255.04 (2).
146.82(2)(a)9.a.a. In this subdivision, "abuse" has the meaning given in
s. 51.62 (1) (ag); "neglect" has the meaning given in
s. 51.62 (1) (br); and "parent" has the meaning given in
s. 48.02 (13), except that "parent" does not include the parent of a minor whose custody is transferred to a legal custodian, as defined in
s. 48.02 (11), or for whom a guardian is appointed under
s. 880.33.
146.82(2)(a)9.b.
b. Except as provided in
subd. 9. c. and
d., to staff members of the protection and advocacy agency designated under
s. 51.62 (2) or to staff members of the private, nonprofit corporation with which the agency has contracted under
s. 51.62 (3) (a) 3., if any, for the purpose of protecting and advocating the rights of a person with developmental disabilities, as defined under
s. 51.62 (1) (am), who resides in or who is receiving services from an inpatient health care facility, as defined under
s. 51.62 (1) (b), or a person with mental illness, as defined under
s. 51.62 (1) (bm).
146.82(2)(a)9.c.
c. If the patient, regardless of age, has a guardian appointed under
s. 880.33, or if the patient is a minor with developmental disability, as defined in
s. 51.01 (5) (a), who has a parent or has a guardian appointed under
s. 48.831 and does not have a guardian appointed under
s. 880.33, information concerning the patient that is obtainable by staff members of the agency or nonprofit corporation with which the agency has contracted is limited, except as provided in
subd. 9. e., to the nature of an alleged rights violation, if any; the name, birth date and county of residence of the patient; information regarding whether the patient was voluntarily admitted, involuntarily committed or protectively placed and the date and place of admission, placement or commitment; and the name, address and telephone number of the guardian of the patient and the date and place of the guardian's appointment or, if the patient is a minor with developmental disability who has a parent or has a guardian appointed under
s. 48.831 and does not have a guardian appointed under
s. 880.33, the name, address and telephone number of the parent or guardian appointed under
s. 48.831 of the patient.
146.82(2)(a)9.d.
d. Except as provided in
subd. 9. e., any staff member who wishes to obtain additional information about a patient described in
subd. 9. c. shall notify the patient's guardian or, if applicable, parent in writing of the request and of the guardian's or parent's right to object. The staff member shall send the notice by mail to the guardian's or, if applicable, parent's address. If the guardian or parent does not object in writing within 15 days after the notice is mailed, the staff member may obtain the additional information. If the guardian or parent objects in writing within 15 days after the notice is mailed, the staff member may not obtain the additional information.
146.82(2)(a)9.e.
e. The restrictions on information that is obtainable by staff members of the protection and advocacy agency or private, nonprofit corporation that are specified in
subd. 9. c. and
d. do not apply if the custodian of the record fails to promptly provide the name and address of the parent or guardian; if a complaint is received by the agency or nonprofit corporation about a patient, or if the agency or nonprofit corporation determines that there is probable cause to believe that the health or safety of the patient is in serious and immediate jeopardy, the agency or nonprofit corporation has made a good-faith effort to contact the parent or guardian upon receiving the name and address of the parent or guardian, the agency or nonprofit corporation has either been unable to contact the parent or guardian or has offered assistance to the parent or guardian to resolve the situation and the parent or guardian has failed or refused to act on behalf of the patient; if a complaint is received by the agency or nonprofit corporation about a patient or there is otherwise probable cause to believe that the patient has been subject to abuse or neglect by a parent or guardian; or if the patient is a minor whose custody has been transferred to a legal custodian, as defined in
s. 48.02 (11) or for whom a guardian that is an agency of the state or a county has been appointed.
146.82(2)(a)11.
11. To a county department, as defined under
s. 48.02 (2g), a sheriff or police department or a district attorney for purposes of investigation of threatened or suspected child abuse or neglect or suspected unborn child abuse or for purposes of prosecution of alleged child abuse or neglect, if the person conducting the investigation or prosecution identifies the subject of the record by name. The health care provider may release information by initiating contact with a county department, sheriff or police department or district attorney without receiving a request for release of the information. A person to whom a report or record is disclosed under this subdivision may not further disclose it, except to the persons, for the purposes and under the conditions specified in
s. 48.981 (7).
146.82(2)(a)12.
12. To a school district employee or agent, with regard to patient health care records maintained by the school district by which he or she is employed or is an agent, if any of the following apply:
146.82(2)(a)12.a.
a. The employee or agent has responsibility for preparation or storage of patient health care records.
146.82(2)(a)12.b.
b. Access to the patient health care records is necessary to comply with a requirement in federal or state law.
146.82(2)(a)16.
16. To a designated representative of the long-term care ombudsman under
s. 16.009 (4), for the purpose of protecting and advocating the rights of an individual 60 years of age or older who resides in a long-term care facility, as specified in
s. 16.009 (4) (b).
146.82(2)(a)18.
18. Following the death of a patient, to a coroner, deputy coroner, medical examiner or medical examiner's assistant, for the purpose of completing a medical certificate under
s. 69.18 (2) or investigating a death under
s. 979.01 or
979.10. The health care provider may release information by initiating contact with the office of the coroner or medical examiner without receiving a request for release of the information and shall release information upon receipt of an oral or written request for the information from the coroner, deputy coroner, medical examiner or medical examiner's assistant. The recipient of any information under this subdivision shall keep the information confidential except as necessary to comply with
s. 69.18,
979.01 or
979.10.
146.82(2)(a)18m.
18m. If the subject of the patient health care records is a child or juvenile who has been placed in a foster home, treatment foster home, group home, residential care center for children and youth, or a secured correctional facility, including a placement under
s. 48.205,
48.21,
938.205, or
938.21 or for whom placement in a foster home, treatment foster home, group home, residential care center for children and youth, or secured correctional facility is recommended under
s. 48.33 (4),
48.425 (1) (g),
48.837 (4) (c), or
938.33 (3) or
(4), to an agency directed by a court to prepare a court report under
s. 48.33 (1),
48.424 (4) (b),
48.425 (3),
48.831 (2),
48.837 (4) (c), or
938.33 (1), to an agency responsible for preparing a court report under
s. 48.365 (2g),
48.425 (1),
48.831 (2),
48.837 (4) (c), or
938.365 (2g), to an agency responsible for preparing a permanency plan under
s. 48.355 (2e),
48.38,
48.43 (1) (c) or
(5) (c),
48.63 (4) or
(5) (c),
48.831 (4) (e),
938.355 (2e), or
938.38 regarding the child or juvenile, or to an agency that placed the child or juvenile or arranged for the placement of the child or juvenile in any of those placements and, by any of those agencies, to any other of those agencies and, by the agency that placed the child or juvenile or arranged for the placement of the child or juvenile in any of those placements, to the foster parent or treatment foster parent of the child or juvenile or the operator of the group home, residential care center for children and youth, or secured correctional facility in which the child or juvenile is placed, as provided in
s. 48.371 or
938.371.
146.82(2)(a)20.
20. If the patient health care records do not contain information and the circumstances of the release do not provide information that would permit the identification of the patient.
146.82(2)(a)21.
21. To a prisoner's health care provider, the medical staff of a prison or jail in which a prisoner is confined, the receiving institution intake staff at a prison or jail to which a prisoner is being transferred or a person designated by a jailer to maintain prisoner medical records, if the disclosure is made with respect to a prisoner's patient health care records under
s. 302.388 or to the department of corrections if the disclosure is made with respect to a prisoner's patient health care records under
s. 302.388 (4).
146.82(2)(b)
(b) Except as provided in
s. 610.70 (3) and
(5), unless authorized by a court of record, the recipient of any information under
par. (a) shall keep the information confidential and may not disclose identifying information about the patient whose patient health care records are released.
146.82(2)(c)
(c) Notwithstanding
sub. (1), patient health care records shall be released to appropriate examiners and facilities in accordance with
ss. 971.17 (2) (e),
(4) (c) and
(7) (c),
980.03 (4) and
980.08 (3). The recipient of any information from the records shall keep the information confidential except as necessary to comply with
s. 971.17 or
ch. 980.
146.82(2)(d)
(d) For each release of patient health care records under this subsection, the health care provider shall record the name of the person or agency to which the records were released, the date and time of the release and the identification of the records released.
146.82(3)
(3) Reports made without informed consent. 146.82(3)(a)(a) Notwithstanding
sub. (1), a physician who treats a patient whose physical or mental condition in the physician's judgment affects the patient's ability to exercise reasonable and ordinary control over a motor vehicle may report the patient's name and other information relevant to the condition to the department of transportation without the informed consent of the patient.
146.82(3)(b)
(b) Notwithstanding
sub. (1), an optometrist who examines a patient whose vision in the optometrist's judgment affects the patient's ability to exercise reasonable and ordinary control over a motor vehicle may report the patient's name and other information relevant to the condition to the department of transportation without the informed consent of the patient.
146.82(3)(c)
(c) For each release of patient health care records under this subsection, the health care provider shall record the name of the person or agency to which the records were released, the date and time of the release and the identification of the records released.
146.82 History
History: 1979 c. 221;
1983 a. 398;
1985 a. 29,
241,
332,
340;
1987 a. 40,
70,
127,
215,
233,
380,
399;
1989 a. 31,
102,
334,
336;
1991 a. 39;
1993 a. 16,
27,
445,
479;
1995 a. 98,
169,
417;
1997 a. 35,
114,
231,
272,
292,
305;
1999 a. 32,
78,
83,
114,
151;
2001 a. 38,
59,
69,
105;
2003 a. 281.
146.82 Annotation
Because under s. 905.04 (4) (f) there is no privilege for chemical tests for intoxication, results of a test taken for diagnostic purposes are admissible in an OMVWI trial without patient approval. City of Muskego v. Godec,
167 Wis. 2d 536,
482 N.W.2d 79 (1992).
146.82 Annotation
Patient billing records requested by the state in a fraud investigation under s. 46.25 [now s. 49.22] may be admitted into evidence under the exception to confidentiality found under sub. (2) (a) 3. State v. Allen,
200 Wis. 2d 301,
546 N.W.2d 517 (1996),
95-0792.
146.82 Annotation
This section does not restrict access to medical procedures and did not prevent a police officer from being present during an operation. State v. Thompson,
222 Wis. 2d 179,
585 N.W.2d 905 (Ct. App. 1998).
146.82 Annotation
The provision of confidentiality for patient health records is not an absolute bar to the release of information without the patient's informed consent. Sub. (2) provides numerous exceptions. Information of previous assaultive behavior by a nursing home resident was not protected by the physician-patient privilege and was subject to release by "lawful court order." Crawford v. Care Concepts, Inc. 2001 WI App 45,
243 Wis. 2d 119,
625 N.W.2d 876.
146.82 Annotation
Disclosure of patient health care records in Wisconsin. Lehner, WBB Aug. 1984.
146.82 Annotation
Confidentiality of Medical Records. Meili. Wis. Law. Feb. 1995.
146.82 Annotation
Balancing Federal and Wisconsin Medical Privacy Laws. Hartin. Wis. Law. June 2003.
146.82 Annotation
Attorney access to and use of medical records. Stone. Wis. Law. Aug. 2003
146.82 Annotation
Attorney access to medical records. Stone. Wis. Law. Oct. 2003
146.83
146.83
Access to patient health care records. 146.83(1)(1) Except as provided in
s. 51.30 or
146.82 (2), any patient or other person may, upon submitting a statement of informed consent:
146.83(1)(a)
(a) Inspect the health care records of a health care provider pertaining to that patient at any time during regular business hours, upon reasonable notice.
146.83(1)(b)
(b) Receive a copy of the patient's health care records upon payment of fees, as established by rule under
sub. (3m).
146.83(1)(c)
(c) Receive a copy of the health care provider's X-ray reports or have the X-rays referred to another health care provider of the patient's choice upon payment of fees, as established by rule under
sub. (3m).
146.83(1m)(a)(a) A patient's health care records shall be provided to the patient's health care provider upon request and, except as provided in
s. 146.82 (2), with a statement of informed consent.
146.83(1m)(b)
(b) The health care provider under
par. (a) may be charged reasonable costs for the provision of the patient's health care records.
146.83(2)
(2) The health care provider shall provide each patient with a statement paraphrasing the provisions of this section either upon admission to an inpatient health care facility, as defined in
s. 50.135 (1), or upon the first provision of services by the health care provider.
146.83(3)
(3) The health care provider shall note the time and date of each request by a patient or person authorized by the patient to inspect the patient's health care records, the name of the inspecting person, the time and date of inspection and identify the records released for inspection.
