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.
146.83(3m)(a)(a) The department shall, by rule, prescribe fees that are based on an approximation of actual costs. The fees, plus applicable tax, are the maximum amount that a health care provider may charge under
sub. (1) (b) for duplicate patient health care records and under
sub. (1) (c) for duplicate X-ray reports or the referral of X-rays to another health care provider of the patient's choice. The rule shall also permit the health care provider to charge for actual postage or other actual delivery costs. In determining the approximation of actual costs for the purposes of this subsection, the department may consider all of the following factors:
146.83(3m)(a)1.
1. Operating expenses, such as wages, rent, utilities, and duplication equipment and supplies.
146.83(3m)(a)2.
2. The varying cost of retrieval of records, based on the different media on which the records are maintained.
146.83(3m)(a)3.
3. The cost of separating requested patient health care records from those that are not requested.
146.83(3m)(a)4.
4. The cost of duplicating requested patient health care records.
146.83(3m)(b)
(b) By January 1, 2006, and every 3 years thereafter, the department shall revise the rules under
par. (a) to account for increases or decreases in actual costs.
146.83(4)
(4) No person may do any of the following:
146.83(4)(a)
(a) Intentionally falsify a patient health care record.
146.83(4)(b)
(b) Conceal or withhold a patient health care record with intent to prevent or obstruct an investigation or prosecution or with intent to prevent its release to the patient, to his or her guardian appointed under
ch. 880, to his or her health care provider with a statement of informed consent, or under the conditions specified in
s. 146.82 (2), or to a person with a statement of informed consent.
146.83(4)(c)
(c) Intentionally destroy or damage records in order to prevent or obstruct an investigation or prosecution.
146.83 Annotation
Sub. (1) (b) does not preclude certification of a class action in a suit to recover unreasonable fees charged for copies of health care records. Cruz v. All Saints Healthcare System, Inc. 2001 WI App 67,
242 Wis. 2d 432,
625 N.W.2d 344.
146.835
146.835
Parents denied physical placement rights. A parent who has been denied periods of physical placement under
s. 767.24 (4) (b) or
767.325 (4) may not have the rights of a parent or guardian under this chapter with respect to access to that child's patient health care records under
s. 146.82 or
146.83.
146.835 History
History: 1987 a. 355.
146.836
146.836
Applicability. Sections 146.815,
146.82,
146.83 (4) and
146.835 apply to all patient health care records, including those on which written, drawn, printed, spoken, visual, electromagnetic or digital information is recorded or preserved, regardless of physical form or characteristics.
146.836 History
History: 1999 a. 78.
