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.
146.84(1)(c)
(c) An individual may bring an action to enjoin any violation of
s. 146.82 or
146.83 or to compel compliance with
s. 146.82 or
146.83 and may, in the same action, seek damages as provided in this subsection.
146.84(2)(a)(a) Whoever does any of the following may be fined not more than $25,000 or imprisoned for not more than 9 months or both:
146.84(2)(a)2.
2. Discloses confidential information with knowledge that the disclosure is unlawful and is not reasonably necessary to protect another from harm.
146.84(2)(b)
(b) Whoever negligently discloses confidential information in violation of
s. 146.82 is subject to a forfeiture of not more than $1,000 for each violation.
146.84(2)(c)
(c) Whoever intentionally discloses confidential information in violation of
s. 146.82, knowing that the information is confidential, and discloses the information for pecuniary gain may be fined not more than $100,000 or imprisoned not more than 3 years and 6 months, or both.
146.84(3)
(3) Discipline of employees. Any person employed by the state or any political subdivision of the state who violates
s. 146.82 or
146.83, except a health care provider that negligently violates
s. 153.50 (6) (c), may be discharged or suspended without pay.
146.84(4)
(4) Exceptions. This section does not apply to any of the following:
146.84(4)(a)
(a) Violations by a nursing facility, as defined under
s. 49.498 (1) (i), of the right of a resident of the nursing facility to confidentiality of his or her patient health care records.
146.84(4)(b)
(b) Violations by a nursing home, as defined under
s. 50.01 (3), of the right of a resident of the nursing home to confidentiality of his or her patient health care records.
146.84 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.
146.87
146.87
Federal registration numbers for prescribers of controlled substances. 146.87(1)(b)
(b) "Federal registration number" means the registration number required under
21 USC 822 for practitioners who prescribe controlled substances.
146.87(2)
(2) Beginning on the first day on which small health plans are required to comply with a U.S. Department of Health and Human Services regulation under
42 USC 1320d-2 (b) that requires use of a unique identifier for health care providers, no person may do any of the following:
146.87(2)(a)
(a) Require that a practitioner include his or her federal registration number on a prescription order for a drug or device that is not a controlled substance.
146.87(2)(b)
(b) Disclose a practitioner's federal registration number without the practitioner's consent for any purpose other than complying with or enforcing federal or state law related to controlled substances.
146.87(2)(c)
(c) Use a federal registration number to identify or monitor the prescribing practices of a practitioner, except for the purpose of complying with or enforcing federal or state law related to controlled substances.
146.87(3)
(3) A person who violates this section may be required to forfeit not more than $10,000 for each violation.
146.87 History
History: 2003 a. 272.
146.89
146.89
Volunteer health care provider program. 146.89(1)(d)
(d) "Governing body" means the governing body of any of the following:
