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 juvenile 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 juvenile 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 juvenile correctional facility in which the child or juvenile is placed, as provided in
s. 48.371 or
938.371.
Effective date note
NOTE: Subd. 18m. is amended by
2009 Wis. Acts 28 and
276 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
18m. If the subject of the patient health care records is a child or juvenile who has been placed in a foster home, group home, residential care center for children and youth, or juvenile correctional facility, including a placement under s. 48.205, 48.21, 938.205, or 938.21, or for whom placement in a foster home, group home, residential care center for children and youth, or juvenile 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 of the child or juvenile or the operator of the group home, residential care center for children and youth, or juvenile correctional facility in which the child or juvenile is placed, as provided in s. 48.371 or 938.371.
146.82(2)(a)19.
19. To a procurement organization, as defined in
s. 157.06 (2) (p), for the purpose of conducting an examination to ensure the medical suitability of a body part that is or could be the subject of an anatomical gift under
s. 157.06.
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)(c)
(c) Notwithstanding
sub. (1), patient health care records shall be released to appropriate examiners and facilities in accordance with
s. 971.17 (2) (e),
(4) (c), and
(7) (c). The recipient of any information from the records shall keep the information confidential except as necessary to comply with
s. 971.17.
146.82(2)(cm)
(cm) Notwithstanding
sub. (1), patient health care records shall be released, upon request, to appropriate persons in accordance with
s. 980.031 (4) and to authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney for use in the prosecution of any proceeding or any evaluation conducted under
ch. 980, if the treatment records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under
ch. 980 is pending may issue any protective orders that it determines are appropriate concerning records made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under
ch. 980.
146.82(3)
(3) Reports made without informed consent. 146.82(3)(a)(a) Notwithstanding
sub. (1), a physician or advanced practice nurse prescriber certified under
s. 441.16 (2) who treats a patient whose physical or mental condition in the physician's or advanced practice nurse prescriber'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(4)
(4) Release of a portion of a record to certain persons. 146.82(4)(b)
(b) Notwithstanding
sub. (1), a health care provider may release a portion, but not a copy, of a patient health care record, to the following, under the following circumstances:
146.82(4)(b)1.
1. Any person, if the patient or a person authorized by the patient is not incapacitated, is physically available, and agrees to the release of that portion.
146.82(4)(b)2.
2. Any of the following, as applicable, if the patient and person authorized by the patient are incapacitated or are not physically available, or if an emergency makes it impracticable to obtain an agreement from the patient or from the person authorized by the patient, and if the health care provider determines, in the exercise of his or her professional judgment, that release of a portion of the patient health care record is in the best interest of the patient:
146.82(4)(b)2.a.
a. A member of the patient's immediate family, another relative of the patient, a close personal friend of the patient, or an individual identified by the patient, that portion that is directly relevant to the involvement by the member, relative, friend, or individual in the patient's care.
146.82(4)(b)2.b.
b. Any person, that portion that is necessary to identify, locate, or notify a member of the patient's immediate family or another person that is responsible for the care of the patient concerning the patient's location, general condition, or death.
146.82(5)(b)
(b) Notwithstanding
sub. (1) and except as provided in
s. 610.70 (5), a covered entity may redisclose a patient health care record it receives under this section without consent by the patient or person authorized by the patient if the redisclosure of the patient health care record is a release permitted under this section.
146.82(5)(c)
(c) Notwithstanding
sub. (1), an entity that is not a covered entity may redisclose a patient health care record it receives under this section only under one of the following circumstances:
146.82(5)(c)1.
1. The patient or a person authorized by the patient provides informed consent for the redisclosure.
146.82(5)(c)3.
3. The redisclosure is limited to the purpose for which the patient health care record was initially received.
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;
2005 a. 187,
344,
387,
388,
434;
2007 a. 20 s.
9121 (6) (a);
2007 a. 45,
106,
108,
130;
2009 a. 28,
276,
362.
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),
97-2744.
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 45,
243 Wis. 2d 119,
625 N.W.2d 876,
99-0863.
146.82 Annotation
In the event of a release of confidential health information in violation of HIPAA or this section, the proper remedy is not suppression of the released information. Neither HIPAA nor this section provides for suppression of evidence as a remedy for a violation. Suppression is warranted only when evidence has been obtained in violation of a defendant's constitutional rights or if a statute specifically provides for suppression as a remedy. State v. Straehler, 2008 WI App 14,
307 Wis. 2d 360,
745 N.W.2d 431,
07-0822.
146.82 Annotation
This section does not reach beyond protection of health care records. A nurse's verbal statements based upon her observations are not protected by this section. State v. Straehler, 2008 WI App 14,
307 Wis. 2d 360,
745 N.W.2d 431,
07-0822.
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(1d)(1d) Except as provided in
s. 51.30 or
146.82 (2), any patient or person authorized by the patient may, upon submitting a statement of informed consent, inspect the health care records of a health care provider pertaining to that patient. Except as provided in
sub. (1g), the health care provider shall make the records available for inspection by the patient or person authorized by the patient during regular business hours, after the health care provider receives notice from the patient or person authorized by the patient. A health care provider may not charge a fee for inspection under this subsection.
146.83(1f)(a)(a) Except as provided in
par. (b),
sub. (1g), or
s. 51.30 or
146.82 (2), if a patient or a person authorized by the patient requests copies of the patient's health care records, provides informed consent, and pays the applicable fees under
par. (c) or
(d), the health care provider shall, subject to
sub. (1k), provide the patient or person authorized by the patient copies of the requested records after receiving the request.
146.83(1f)(b)
(b) Except as provided in
sub. (1g) or
s. 51.30 or
146.82 (2), if a patient or a person authorized by the patient requests a copy of a health care provider's report regarding an X-ray of the patient, provides informed consent, and pays the applicable fees under
par. (c) or
(d), the health care provider shall, subject to
sub. (1k), provide the patient or person authorized by the patient a copy of the report or provide the X-ray to another health care provider of the patient's choice within 30 days after receiving the request.
146.83(1f)(c)
(c) Except as provided in
par. (d), a health care provider may charge no more than the total of all of the following that apply for providing copies requested under
par. (a) or
(b):
146.83(1f)(c)3m.
3m. For providing copies in digital or electronic format, a charge for all copies requested.
146.83(1f)(c)5.
5. If the patient or person authorized by the patient requests delivery of the copies within 7 or fewer days after making a request for copies, and the health care provider delivers the copies within that time, a fee equal to 10 percent of the total fees that may be charged under
subds. 1. to
4.
146.83(1f)(d)1.1. If a patient or person authorized by the patient requests copies of the patient's health care records under this subsection for use in appealing a denial of social security disability insurance, under
42 USC 401 to
433, or supplemental security income, under
42 USC 1381 to
1385, the health care provider may charge the patient or person authorized by the patient no more than the amount that the federal social security administration reimburses the department for copies of patient health care records.
146.83(1f)(d)2.
2. Except as provided in
sub. (1g), a health care provider may not charge a fee for providing one set of copies of a patient's health care records under this subsection if the patient is eligible for medical assistance, as defined in
s. 49.43 (8). A health care provider may require that a patient or person authorized by the patient provide proof that the patient is eligible for medical assistance before providing copies under this subdivision without charge. A health care provider may charge the fees under
par. (c) for providing a 2nd or additional set of copies of patient health care records for a patient who is eligible for medical assistance.
146.83(1g)
(1g) The time limit for making records available for inspection under
sub. (1d), the time limits for providing copies of records under
sub. (1f) (a) and
(b), and the requirement under
sub. (1f) (d) 2. to provide one set of copies of records without charge if the patient is eligible for medical assistance do not apply if the health care provider is the department or the department of corrections.
146.83(1h)(a)(a) Except as provided in
s. 51.30 or
146.82 (2), if a person other than a patient and other than a person authorized by the patient requests copies of a patient's health care records, provides informed consent, and pays the applicable fees under
par. (b) or
(c), the health care provider shall, subject to
sub. (1k), provide the person making the request copies of the requested records.
146.83(1h)(b)
(b) Except as provided in
par. (c), a health care provider may charge no more than the total of all of the following that apply for providing copies requested under
par. (a):
146.83(1h)(b)3m.
3m. For providing copies in digital or electronic format, a charge for all copies requested.
146.83(1h)(b)5.
5. For processing and handling, a single $15 charge for all copies requested.
146.83(1h)(b)7.
7. If the requester requests delivery of the copies within 7 or fewer days after making a request for copies, and the health care provider delivers the copies within that time, a fee equal to 10 percent of the total fees that may be charged under
subds. 1. to
6.
146.83(1h)(c)
(c) If the department requests copies of a patient's health care records for use in determining eligibility for social security disability insurance, under
42 USC 401 to
433, or supplemental security income, under
42 USC 1381 to
1385, the health care provider may charge no more than the amount that the federal social security administration reimburses the department for copies of patient health care records.
146.83(1k)
(1k) Upon the request of the person requesting copies of patient health care records under
sub. (1f) or
(1h), the health care provider shall provide the copies in a digital or electronic format unless the health care provider's record system does not provide for the creation or transmission of records in a digital or electronic format, in which case the health care provider shall provide the person a written explanation for why the copies cannot be provided in a digital or electronic format. The health care provider may include the written explanation with the production of paper copies of the records if the person chooses to receive paper copies.
146.83(1m)
(1m) 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(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(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, 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,
00-1473.
146.835
146.835
Parents denied physical placement rights. A parent who has been denied periods of physical placement under
s. 767.41 (4) (b) or
767.451 (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;
2005 a. 443 s.
265.
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.
146.84
146.84
Violations related to patient health care records. 146.84(1)(1)
Actions for violations; damages; injunction. 146.84(1)(a)(a) A custodian of records incurs no liability under
par. (bm) for the release of records in accordance with
s. 146.82 or
146.83 while acting in good faith.
146.84(1)(b)
(b) Any person, including the state or any political subdivision of the state, who violates
s. 146.82 or
146.83 in a manner that is knowing and willful shall be liable to any person injured as a result of the violation for actual damages to that person, exemplary damages of not more than $25,000 and costs and reasonable actual attorney fees.
146.84(1)(bm)
(bm) Any person, including the state or any political subdivision of the state, who negligently violates
s. 146.82 or
146.83 shall be liable to any person injured as a result of the violation for actual damages to that person, exemplary damages of not more than $1,000 and costs and reasonable actual attorney fees.
