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51.30(4)(b)12. 12. To a correctional officer of the department of corrections who has custody of or is responsible for the supervision of an individual who is transferred or discharged from a treatment facility. Records released under this subdivision are limited to notice of the subject individual's change in status.
51.30(4)(b)12m. 12m. To any person if the patient was admitted under s. 971.14, 971.17 or 980.06 or ch. 975 or transferred under s. 51.35 (3) or 51.37 and is on unauthorized absence from a treatment facility. Information released under this subdivision is limited to information that would assist in the apprehension of the patient.
51.30(4)(b)15. 15. To personnel employed by a county department under s. 46.215, 46.22, 51.42 or 51.437 in any county where the county department has established and submitted to the department a written agreement to coordinate services to individuals receiving services under this chapter. This information shall be released upon request of such county department personnel, and may be utilized only for the purposes of coordinating human services delivery and case management. This information shall remain confidential, and shall continue to be governed by this section. Information may be released under this subdivision only if the subject individual has received services through a county department under s. 51.42 or 51.437 within 6 months preceding the request for information, and the information is limited to:
51.30(4)(b)15.a. a. The subject individual's name, address, age, birthdate, sex, client-identifying number and primary disability.
51.30(4)(b)15.b. b. The type of service rendered or requested to be provided to the subject individual, and the dates of such service or request.
51.30(4)(b)15.c. c. Funding sources, and other funding or payment information.
51.30(4)(b)16. 16. If authorized by the secretary or his or her designee, to a law enforcement agency upon request if the individual was admitted under ch. 971 or 975 or transferred under s. 51.35 (3) or 51.37. Information released under this subdivision is limited to the individual's name and other identifying information, including photographs and fingerprints, the branch of the court that committed the individual, the crime that the individual is charged with, found not guilty of by reason of mental disease or defect or convicted of, whether or not the individual is or has been authorized to leave the grounds of the institution and information as to the individual's whereabouts during any time period. In this subdivision "law enforcement agency" has the meaning provided in s. 165.83 (1) (b).
51.30(4)(b)17. 17. To the elder-adult-at-risk agency designated under s. 46.90 (2) or other investigating agency under s. 46.90 for the purposes of s. 46.90 (4) and (5), to an agency, as defined in s. 48.981 (1) (ag), or a sheriff or police department for the purposes of s. 48.981 (2) and (3), or to the adult-at-risk agency designated under s. 55.043 (1d) for purposes of s. 55.043. The treatment record holder may release treatment record information by initiating contact with the elder-adult-at-risk agency, agency, as defined in s. 48.981 (1) (ag), sheriff or police department, or adult-at-risk agency, without first receiving a request for release of the treatment record.
51.30(4)(b)18.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, or s. 54.10 or s. 880.33, 2003 stats.
51.30(4)(b)18.b. b. Except as provided in subd. 18. 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 persons with developmental disabilities, as defined under s. 51.62 (1) (am), or mental illness, as defined under s. 51.62 (1) (bm).
51.30(4)(b)18.c. c. If the patient, regardless of age, has a guardian appointed under s. 54.10 or s. 880.33, 2003 stats., 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. 54.10 or s. 880.33, 2003 stats., 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. 18. 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. 54.10 or s. 880.33, 2003 stats., the name, address and telephone number of the parent or guardian appointed under s. 48.831 of the patient.
51.30(4)(b)18.d. d. Except as provided in subd. 18. e., any staff member who wishes to obtain additional information about a patient described in subd. 18. 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.
51.30(4)(b)18.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. 18. 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.
51.30(4)(b)19. 19. To state and local law enforcement agencies for the purpose of reporting an apparent crime committed on the premises of an inpatient treatment facility or nursing home, if the facility or home has treatment records subject to this section, or observed by staff or agents of any such facility or nursing home. Information released under this subdivision is limited to identifying information that may be released under subd. 16. and information related to the apparent crime.
51.30(4)(b)20. 20. Except with respect to the treatment records of a subject individual who is receiving or has received services for alcoholism or drug dependence, to the spouse, domestic partner under ch. 770, parent, adult child or sibling of a subject individual, if the spouse, domestic partner, parent, adult child or sibling is directly involved in providing care to or monitoring the treatment of the subject individual and if the involvement is verified by the subject individual's physician, psychologist or by a person other than the spouse, domestic partner, parent, adult child or sibling who is responsible for providing treatment to the subject individual, in order to assist in the provision of care or monitoring of treatment. Except in an emergency as determined by the person verifying the involvement of the spouse, domestic partner, parent, adult child or sibling, the request for treatment records under this subdivision shall be in writing, by the requester. Unless the subject individual has been adjudicated incompetent in this state, the person verifying the involvement of the spouse, domestic partner, parent, adult child or sibling shall notify the subject individual about the release of his or her treatment records under this subdivision. Treatment records released under this subdivision are limited to the following:
51.30(4)(b)20.a. a. A summary of the subject individual's diagnosis and prognosis.
51.30(4)(b)20.b. b. A listing of the medication which the subject individual has received and is receiving.
51.30(4)(b)20.c. c. A description of the subject individual's treatment plan.
51.30(4)(b)21. 21. To a mental health review officer for the purposes of s. 51.14.
51.30(4)(b)22. 22. To a representative of the board on aging and long-term care, in accordance with s. 49.498 (5) (e).
51.30(4)(b)23. 23. To the department under s. 51.03 (2) or to a sheriff, police department or district attorney for purposes of investigation of a death reported under s. 51.64 (2) (a).
51.30(4)(b)24. 24. To the department of corrections for the purpose of obtaining information concerning a person required to register under s. 301.45. The department of corrections may disclose information that it receives under this subdivision as provided under s. 301.46.
51.30(4)(b)25. 25. If the treatment records do not contain information and the circumstances of the release do not provide information that would permit the identification of the individual.
51.30(4)(b)26. 26. To the department of corrections or to a sheriff, to determine if a person incarcerated is complying with the assessment or the driver safety plan ordered under s. 343.30 (1q) (c).
51.30(4)(b)27. 27. For the purpose of entering information concerning the subject individual into the statewide automated child welfare information system established under s. 48.47 (7g).
51.30(4)(b)28. 28. To the department of justice, under the requirements of ss. 51.20 (13) (cv) 4. and 51.45 (13) (i) 4.
51.30(4)(c) (c) Limitation on release of alcohol and drug treatment records. Notwithstanding par. (b), whenever federal law or applicable federal regulations restrict, or as a condition to receipt of federal aids require that this state restrict the release of information contained in the treatment records of any patient who receives treatment for alcoholism or drug dependency in a program or facility to a greater extent than permitted under this section, the department may by rule restrict the release of such information as may be necessary to comply with federal law and regulations. Rules promulgated under this paragraph shall supersede this section with respect to alcoholism and drug dependency treatment records in those situations in which they apply.
51.30(4)(cm) (cm) Required access to certain information. Notwithstanding par. (a), treatment records of an individual shall, upon request, be released without informed written consent, except as restricted under par. (c), to the parent, child, sibling, spouse, or domestic partner under ch. 770 of an individual who is or was a patient at an inpatient facility; to a law enforcement officer who is seeking to determine whether an individual is on unauthorized absence from the facility; and to mental health professionals who are providing treatment to the individual at the time that the information is released to others. Information released under this paragraph is limited to notice as to whether or not an individual is a patient at the inpatient facility and, if the individual is no longer a patient at the inpatient facility, the facility or other place, if known, at which the individual is located. This paragraph does not apply under any of the following circumstances:
51.30(4)(cm)1. 1. To the individual's parent, child, sibling, spouse, or domestic partner under ch. 770 who is requesting information, if the individual has specifically requested that the information be withheld from the parent, child, sibling, spouse, or domestic partner.
51.30(4)(cm)2. 2. If, in the opinion of the inpatient facility, there is reasonable cause to believe that disclosure of the information would result in danger to the individual.
51.30(4)(d) (d) Individual access.
51.30(4)(d)1.1. Access to treatment records by a subject individual during his or her treatment may be restricted by the director of the treatment facility. However, access may not be denied at any time to records of all medications and somatic treatments received by the individual.
51.30(4)(d)2. 2. The subject individual shall have a right, following discharge under s. 51.35 (4), to a complete record of all medications and somatic treatments prescribed during admission or commitment and to a copy of the discharge summary which was prepared at the time of his or her discharge. A reasonable and uniform charge for reproduction may be assessed.
51.30(4)(d)3. 3. In addition to the information provided under subd. 2., the subject individual shall, following discharge, if the individual so requests, have access to and have the right to receive from the facility a photostatic copy of any or all of his or her treatment records. A reasonable and uniform charge for reproduction may be assessed. The director of the treatment facility or such person's designee and the treating physician have a right to be present during inspection of any treatment records. Notice of inspection of treatment records shall be provided to the director of the treatment facility and the treating physician at least one full day, excluding Saturdays, Sundays and legal holidays, before inspection of the records is made. Treatment records may be modified prior to inspection to protect the confidentiality of other patients or the names of any other persons referred to in the record who gave information subject to the condition that his or her identity remain confidential. Entire documents may not be withheld in order to protect such confidentiality.
51.30(4)(d)4. 4. At the time of discharge all individuals shall be informed by the director of the treatment facility or such person's designee of their rights as provided in this subsection.
51.30(4)(dm) (dm) Destruction, damage, falsification or concealment of treatment records. No person may do any of the following:
51.30(4)(dm)1. 1. Intentionally falsify a treatment record.
51.30(4)(dm)2. 2. Conceal or withhold a treatment record with intent to prevent its release to the subject individual under par. (d), to his or her guardian, or to persons with the informed written consent of the subject individual or with intent to prevent or obstruct an investigation or prosecution.
51.30(4)(dm)3. 3. Intentionally destroy or damage records in order to prevent or obstruct an investigation or prosecution.
51.30(4)(e) (e) Notation of release of information. Each time written information is released from a treatment record, a notation shall be made in the record by the custodian thereof that includes the following: the name of the person to whom the information was released; the identification of the information released; the purpose of the release; and the date of the release. The subject individual shall have access to such release data as provided in par. (d).
51.30(4)(f) (f) Correction of information. A subject individual, the parent, guardian, or person in the place of a parent of a minor, or the guardian of an individual adjudicated incompetent may, after having gained access to treatment records, challenge the accuracy, completeness, timeliness, or relevance of factual information in his or her treatment records and request in writing that the facility maintaining the record correct the challenged information. The request shall be granted or denied within 30 days by the director of the treatment facility, the director of the county department under s. 51.42 or 51.437, or the secretary depending upon which person has custody of the record. Reasons for denial of the requested changes shall be given by the responsible officer and the individual shall be informed of any applicable grievance procedure or court review procedure. If the request is denied, the individual, parent, guardian, or person in the place of a parent shall be allowed to insert into the record a statement correcting or amending the information at issue. The statement shall become a part of the record and shall be released whenever the information at issue is released.
51.30(4)(g) (g) Applicability. Paragraphs (a), (b), (c), (dm) and (e) apply to all treatment records, including those on which written, drawn, printed, spoken, visual, electromagnetic or digital information is recorded or preserved, regardless of physical form or characteristics.
51.30(5) (5)Minors and incompetents.
51.30(5)(a)(a) Consent for release of information. The parent, guardian, or person in the place of a parent of a minor or the guardian of an adult adjudicated incompetent in this state may consent to the release of confidential information in court or treatment records. A minor who is aged 14 or more may consent to the release of confidential information in court or treatment records without the consent of the minor's parent, guardian or person in the place of a parent. Consent under this paragraph must conform to the requirements of sub. (2).
51.30(5)(b) (b) Access to information.
51.30(5)(b)1.1. The guardian of an individual who is adjudicated incompetent in this state shall have access to the individual's court and treatment records at all times. The parent, guardian or person in the place of a parent of a developmentally disabled minor shall have access to the minor's court and treatment records at all times except in the case of a minor aged 14 or older who files a written objection to such access with the custodian of the records. The parent, guardian or person in the place of a parent of other minors shall have the same rights of access as provided to subject individuals under this section.
51.30(5)(b)2. 2. A minor who is aged 14 or older shall have access to his or her own court and treatment records, as provided in this section. A minor under the age of 14 shall have access to court records but only in the presence of a parent, guardian, counsel, guardian ad litem or judge and shall have access to treatment records as provided in this section but only in the presence of a parent, guardian, counsel, guardian ad litem or staff member of the treatment facility.
51.30(5)(bm) (bm) Parents denied physical placement. A parent who has been denied periods of physical placement with a child under s. 767.41 (4) (b) or 767.451 (4) may not have the rights of a parent or guardian under pars. (a) and (b) with respect to access to that child's court or treatment records.
51.30(5)(c) (c) Juvenile court records. The court records of juveniles admitted or committed under this chapter shall be kept separately from all other juvenile court records.
51.30(5)(d) (d) Other juvenile records. Sections 48.78 and 938.78 do not apply to records covered by this section.
51.30(5)(e) (e) Temporary guardian for adult alleged to be incompetent. If an adult is alleged to be incompetent, under the requirements of s. 54.10 (3), to consent to the release of records under this section, but no guardian has been appointed for the individual, consent for the release of records may be given by a temporary guardian who is appointed for the purpose of deciding upon the release of records.
51.30(5)(f) (f) Applicability. Paragraph (a) and (bm) to (e) apply to all treatment records, including those on which written, drawn, printed, spoken, visual, electromagnetic or digital information is recorded or preserved, regardless of physical form or characteristics.
51.30(6) (6)Privileges. Sections 905.03 and 905.04 supersede this section with respect to communications between physicians and patients and between attorneys and clients.
51.30(7) (7)Criminal commitments. Except as otherwise specifically provided, this section applies to the treatment records of persons who are committed under chs. 971 and 975.
51.30(8) (8)Grievances. Failure to comply with any provisions of this section may be processed as a grievance under s. 51.61 (5), except that a grievance resolution procedure option made available to the patient, as required under s. 457.04 (8), applies to failures to comply by a licensed mental health professional who is not affiliated with a county department or treatment facility. However, use of the grievance procedure is not required before bringing any civil action or filing a criminal complaint under this section.
51.30(9) (9)Actions for violations; damages; injunction.
51.30(9)(a)(a) Any person, including the state or any political subdivision of the state, violating this section shall be liable to any person damaged as a result of the violation for such damages as may be proved, together with exemplary damages of not more than $1,000 for each violation and such costs and reasonable actual attorney fees as may be incurred by the person damaged.
51.30(9)(b) (b) In any action brought under par. (a) in which the court determines that the violator acted in a manner that was knowing and willful, the violator shall be liable for such damages as may be proved together with exemplary damages of not more than $25,000 for each violation, together with costs and reasonable actual attorney fees as may be incurred. It is not a prerequisite to an action under this subsection that the plaintiff suffer or be threatened with actual damages.
51.30(9)(c) (c) An individual may bring an action to enjoin any violation of this section or to compel compliance with this section, and may in the same action seek damages as provided in this subsection. The individual may recover costs and reasonable actual attorney fees as may be incurred in the action, if he or she prevails.
51.30(10) (10)Penalties.
51.30(10)(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:
51.30(10)(a)1. 1. Requests or obtains confidential information under this section under false pretenses.
51.30(10)(a)2. 2. Discloses confidential information under this section with knowledge that the disclosure is unlawful and is not reasonably necessary to protect another from harm.
51.30(10)(a)3. 3. Violates sub. (4) (dm) 1., 2. or 3.
51.30(10)(b) (b) Whoever negligently discloses confidential information under this section is subject to a forfeiture of not more than $1,000 for each violation.
51.30(10)(bm) (bm) Whoever intentionally discloses confidential information under this section, 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.
51.30(11) (11)Discipline of employees. Any employee of the department, a county department under s. 51.42 or 51.437 or a public treatment facility who violates this section or any rule promulgated pursuant to this section may be subject to discharge or suspension without pay.
51.30(12) (12)Rule making. The department shall promulgate rules to implement this section.
51.30 Cross-reference Cross-reference: See also chs. DHS 1 and 92, Wis. adm. code.
51.30 Annotation By entering a plea of not guilty by reason of mental disease or defect, a defendant lost the physician-patient privilege by virtue of s. 905.04 (4) (c) and lost confidentiality of treatment records under s. 51.30 (4) (b) 4. State v. Taylor, 142 Wis. 2d 36, 417 N.W.2d 192 (Ct. App. 1987).
51.30 Annotation Sec. 905.04 supersedes this section with respect to all relationships listed in s. 905.04 and is not strictly limited to the physician-patient relationship. State v. S.H. 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990).
51.30 Annotation The release of court records "pursuant to lawful order of the court" under sub. (3) (b) is allowable when access fits within or is comparable to one of the exceptions for treatment records under sub. (4) (b) or when a significant interrelationship exists between the records of the civil commitment proceeding at issue and a criminal proceeding involving a violent felony pending prior to the civil commitment. Mental condition of Billy Jo W. 182 Wis. 2d 616, 514 N.W.2d 707 (1994).
51.30 Annotation Information contained in a treatment record but obtained from another source is not subject to the treatment-records privilege under this section, except that all information that identifies a person as a patient is privileged. Daniel A. v. Walter H. 195 Wis. 2d 971, 537 N.W.2d 103 (Ct. App. 1995), 92-1676.
51.30 Annotation This section provides an exception to the open records law. Nothing in this section or rules adopted under this section suggests that the director is to weigh the harm to the public interest against the benefit to the public in deciding on access to records. State ex rel. Savinski v. Kimble, 221 Wis. 2d 833, 586 N.W.2d 36 (Ct. App. 1998), 97-3356.
51.30 Annotation The subject individual of treatment records is the one who receives treatment. Another person mentioned in the records is not a subject individual and not protected by this section. Olson v. Red Cedar Clinic, 2004 WI App 102, 273 Wis. 2d 728, 681 N.W.2d 306, 03-2198.
51.30 Annotation Statements of emergency detention in the possession of a treatment facility, or a department listed in this section, or in the possession of the police department, are "treatment records" within the meaning of sub. (1) (b), which are expressly exempt from disclosure without written informed consent or a court order under sub. (4) and thus not subject to an open records request. Watton v. Hegerty, 2008 WI 74, 311 Wis. 2d 52, 751 N.W.2d 369, 06-3092.
51.30 Annotation Sub (4) on its face, and as interpreted in Watton, prohibits the release of copies of statements of emergency detention, even if in the possession of the police department. Applying Watton, it would be absurd to construe the plain language of sub. (4) to permit release of the police incident report when it contains the same information as the expressly confidential statement of emergency detention. Although Schuster v. Altenberg, 144 Wis. 2d 223, imposes a duty to warn a person threatened with harm on a psychiatrist who hears the threat from a patient, it does not create a public policy exception to sub. (4). Milwaukee Deputy Sheriff's Association v. City of Wauwatosa, 2010 WI App 95, 327 Wis. 2d 206, 787 N.W.2d 438, 09-1924.
51.30 Annotation Under the broad terms of sub. (7), the confidentiality requirements created under this section generally apply to "treatment records" in criminal not guilty by reason of insanity (NGI) cases. All conditional release plans in NGI cases are, by statutory definition, treatment records. They are "created in the course of providing services to individuals for mental illness," and thus should be deemed confidential. An order of placement in an NGI case is not a "treatment record." La Crosse Tribune v. Circuit Court for La Crosse County, 2012 WI App 42, 340 Wis. 2d 663, 814 N.W.2d 867, 10-3120.
51.30 Annotation This section assigns confidential status to records involving treatment for mental illness. The meaning of "shall" in sub. (4) (a) is established. If the confidentiality provision applies, a court must treat the records as confidential, unless an enumerated exception contained in sub. (4) (b) applies, or there is a circumstance that is comparable to an enumerated exception. La Crosse Tribune v. Circuit Court for La Crosse County, 2012 WI App 42, 340 Wis. 2d 663, 814 N.W.2d 867, 10-3120.
51.30 Annotation The duty to report suspected cases of child abuse or neglect under s. 48.981 (3) (a) prevails over any inconsistent terms in s. 51.30. 68 Atty. Gen. 342.
51.30 Annotation Except for those services for which parental consent is necessary under s. 51.47 (2), a physician or health care facility may release outpatient or detoxification services information only with consent of a minor patient, provided the minor is 12 years of age or over. 77 Atty. Gen. 187.
51.30 Annotation Balancing Federal and Wisconsin Medical Privacy Laws. Hartin. Wis. Law. June 2003.
51.35 51.35 Transfers and discharges.
51.35(1) (1) Transfer of patients and residents.
51.35(1)(a)(a) Subject to pars. (b), (d), and (dm), the department or the county department under s. 51.42 or 51.437 may transfer any patient or resident who is committed to it, or who is admitted to a treatment facility under its supervision or operating under an agreement with it, between treatment facilities or from a treatment facility into the community if the transfer is consistent with reasonable medical and clinical judgment, consistent with s. 51.22 (5), and, if the transfer results in a greater restriction of personal freedom for the patient or resident, in accordance with par. (e). Terms and conditions that will benefit the patient or resident may be imposed as part of a transfer to a less restrictive treatment alternative. A patient or resident who is committed to the department or a county department under s. 51.42 or 51.437 may be required to take medications and receive treatment, subject to the right of the patient or resident to refuse medication and treatment under s. 51.61 (1) (g) and (h), through a community support program as a term or condition of a transfer. The patient or resident shall be informed at the time of transfer of the consequences of violating the terms and conditions of the transfer, including possible transfer back to a treatment facility that imposes a greater restriction on personal freedom of the patient or resident.
51.35(1)(b)1.1. Except as provided in pars. (c) and (d), a transfer of a patient in a mental health institute by the department is subject to the approval of the appropriate county department under ss. 51.42 and 51.437 to which the patient was committed or through which the patient was admitted to the mental health institute.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)