Chapter DHS 92

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.

DHS 92.04(6)(c) (c) Treatment records may be taken from the facility only by staff directly involved in the patient’s treatment, or as required by law.

DHS 92.04(7) (7) Within the department. Treatment records may be made available to department staff only as authorized under s. 51.30 (4) (b) 7., Stats., and this chapter. Information may be disclosed to qualified staff of the department from the treatment records of persons who have been committed by a court to the care and custody of the department or who are voluntarily admitted to an institution of the department under chs. 51, 55, 971, or 975, Stats., or who are under probation or parole supervision.

DHS 92.04(8) (8) Medical emergency. Treatment records may be released to a physician or designee for a medical emergency only as authorized under s. 51.30 (4) (b) 8., Stats.

DHS 92.04(9) (9) Transfer of person involuntarily committed.

DHS 92.04(9)(a) (a) Treatment records may be released to a treatment facility which is to receive an involuntarily committed person only as authorized under s. 51.30 (4) (b) 9., Stats., and this subsection.

DHS 92.04(9)(b) (b) When an individual is to be transferred, the treatment director or designee shall review the treatment record to ensure that no information is released other than that which is allowed under this subsection.

DHS 92.04(9)(c) (c) If a summary of somatic treatments or a discharge summary is prepared, a copy of the summary shall be placed in the treatment record.

DHS 92.04(9)(d) (d) A discharge summary which meets discharge summary criteria established by administrative rules or accreditation standards shall be considered to meet the requirements for a discharge summary specified under s. 51.30 (4) (b) 9., Stats.

DHS 92.04(9)(e) (e) Treatment information may be disclosed only to the extent that is necessary for an understanding of the individual’s current situation.

DHS 92.04(9)(f) (f) Disclosure of information upon transfer of a voluntary patient requires the patient’s informed consent, a court order or other provision of law.

DHS 92.04(10) (10) Persons under the responsibility or supervision of a correctional facility or probation and parole agency.

DHS 92.04(10)(a) (a) Information from treatment records may be released to probation and parole agencies and correctional facilities only as authorized under s. 51.30 (4) (b) 10., Stats., 42 CFR 2.31 and 2.35 and this subsection.

DHS 92.04(10)(b) (b) In addition to the probation and parole agent, only the following persons may have access to information from treatment records:

DHS 92.04(10)(b)1. 1. The probation and parole agent’s supervisor;

DHS 92.04(10)(b)2. 2. The patient’s social worker, the social worker’s supervisor and their superiors; and

DHS 92.04(10)(b)3. 3. Consultants or employees of the division of corrections who have clinical assignments regarding the patients.

DHS 92.04(10)(c) (c) When a patient is transferred back from a treatment facility to a correctional facility the confidential information disclosed to the correctional facility shall be restricted to information authorized under s. 51.30 (4) (b) 9., Stats.

DHS 92.04(10)(d) (d) When a patient is under supervision of a probation and parole agent the confidential information disclosed to the agent shall be restricted to information authorized under s. 51.30 (4) (b) 10., Stats.

DHS 92.04(10)(e) (e) Every person receiving evaluation or treatment under ch. 51, Stats., as a condition of probation or parole shall be notified of the provisions of this subsection by the person’s probation and parole agent prior to receiving treatment.

DHS 92.04(11) (11) Counsel, guardian ad litem, counsel for the interests of the public, court-appointed examiner.

DHS 92.04(11)(a) (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.

DHS 92.04(11)(b) (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.

DHS 92.04(11)(c) (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.

DHS 92.04(11)(d) (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.

DHS 92.04(11)(e) (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.

DHS 92.04(12) (12) Notice to correctional officer of change in status.

DHS 92.04(12)(a) (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.

DHS 92.04(12)(b) (b) Release of information from records of alcohol and drug abuse patients shall be in compliance with 42 CFR Part 2, Subpart C.

DHS 92.04(13) (13) Between a social services department and a 51 board.

DHS 92.04(13)(a) (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.

DHS 92.04(13)(b) (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).

DHS 92.04(14) (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.

DHS 92.04(15) (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.

DHS 92.04(15)(a) (a) The treatment director may disclose only the following information to the law enforcement officer acting pursuant to s. 51.39, Stats.:

DHS 92.04(15)(a)1. 1. Date, time and manner of escape;

DHS 92.04(15)(a)2. 2. Description and picture of the patient;

DHS 92.04(15)(a)3. 3. Addresses and phone numbers of relatives or other persons who might be contacted by the patient; and

DHS 92.04(15)(a)4. 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.

DHS 92.04(15)(b) (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.

DHS 92.04(15)(b)1. 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.

DHS 92.04(15)(b)2. 2. A subpoena, unless signed by a judge of a court of record, does not authorize disclosure of treatment records.

DHS 92.04(15)(c) (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.

DHS 92.04(15)(d) (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.

DHS 92.04(16) (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.

DHS 92.04 History 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 DHS 92.05 Patient access to treatment records.

DHS 92.05(1) (1) Access during treatment.

DHS 92.05(1)(a) (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.

DHS 92.05(1)(b) (b) The treatment facility director or designee may only deny access to treatment records other than records of medication and somatic treatment.

DHS 92.05(1)(b)1. 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.

DHS 92.05(1)(b)2. 2. The reasons for any restriction shall be entered into the treatment record.

DHS 92.05(1)(c) (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.

DHS 92.05(1)(d) (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.

DHS 92.05(2) (2) Access after discharge for inspection of treatment records.

DHS 92.05(2)(a) (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.

DHS 92.05(2)(b) (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.

DHS 92.05(2)(c) (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.

DHS 92.05(3) (3) Copies of treatment records.

DHS 92.05(3)(a) (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.

DHS 92.05(3)(b) (b) Requests for information under this subsection shall be processed within 5 working days after receipt of the request.

DHS 92.05(3)(c) (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.

DHS 92.05(3)(d) (d) The copy service may be restricted to normal working hours.

DHS 92.05(4) (4) Modification of treatment records.

DHS 92.05(4)(a) (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.

DHS 92.05(4)(b) (b) Modification of a patient’s treatment records prior to inspection by the patient shall be as minimal as possible.

DHS 92.05(4)(b)1. 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.

DHS 92.05(4)(b)2. 2. The names of the informants providing the information may be withheld but the information itself shall be available to the patient.

DHS 92.05(4)(c) (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.

DHS 92.05(4)(d) (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.

DHS 92.05(4)(e) (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.

DHS 92.05(5) (5) Correction of factual information.

DHS 92.05(5)(a) (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.

DHS 92.05(5)(b) (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.

DHS 92.05(5)(c) (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.

DHS 92.05(5)(d) (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.

DHS 92.05(5)(e) (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.