Community Grievance Decision Digest
RECORDS, ACCESS BY PATIENTS
THE LAW:
"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
[physical health] treatments received by the individual.
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.
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.
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)(d), Wis. Stats. [Emphasis
added]
“PATIENT ACCESS TO
TREATMENT RECORDS. (1) ACCESS DURING
TREATMENT. (a) Every patient shall have access to his or her treatment
records during treatment to the
extent authorized by s. 51.30(4)(d)1, Stats., and this subsection.
(b) The treatment facility
director or designee may only deny
access to treatment records other
than records of medication and somatic treatment.
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.
2.
The reasons for
any restriction shall be entered
into the treatment record.
(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 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.
(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
materials 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.”
HFS 92.05(1), Wis. Admin. Code.
[Emphasis added.]
“ACCESS AFTER DISCHARGE FOR INSPECTION OF TREATMENT RECORDS. (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...
(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.
(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.”
HFS 92.05(2), Wis. Admin. Code.
[Emphasis added.]
“COPIES OF TREATMENT
RECORDS. (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.
(b) Requests for information under this subsection shall be processed
within 5 working days after receipt of the request.
(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 an inability to pay.”
HFS 92.05(3), Wis. Admin. Code.
[Emphasis added.]
[NOTE: The federal Health
Information Portability and Accountability Act of 1996 (HIPAA) went into effect April 14, 2003.
That act contains provisions concerning record access that affect
or may supercede state law. Those
provisions are:]
"Except as otherwise provided in paragraph (a)(2) or (a)(3) of this
section, an individual has a right of access
to inspect and obtain a copy
of protected health information about the individual in a designated
record set, for as long as the protected health information is maintained
in the designated record set, except
for:
(i) Psychotherapy notes;
(ii) Information compiled in reasonable anticipation of, or for use in, a civil, criminal,
or administrative action
or proceeding; and
(iii) Protected health information maintained by a [facility] that
is:
(A) Subject to the Clinical Laboratory
Improvements Amendments... to the extent the provision of access to the
individual would be prohibited by law; or
(B)
Exempt from the Clinical Laboratory Improvements Amendments...."
45 CFR Sec. 164.524(a)(1) [Emphasis
added.]
"...A [service
provider] may deny an
individual access without
providing the individual an opportunity for review, in the following
circumstances.
(i) The protected health information is excepted from the right of
access by paragraph (a)(1) of this section.
(ii) A
[service provider] that is a correctional
institution or a [service provider] acting under the direction of the
correctional institution may deny, in whole or in part, an inmate's request to obtain a copy of protected health information,
if obtaining such copy would jeopardize the health, safety, security,
custody, or rehabilitation of the individual or of other inmates, or the
safety of any officer, employee, or other person at the correctional
institution or responsible for the transporting of the inmate.
(iii) An individual's access to protected health information
created or obtained by a covered health care provider in the course of research that includes treatment may be temporarily suspended for as long as the research is in progress,
provided that the individual has agreed to the denial of access when
consenting to participate in the research that includes treatment, and the
covered health care provider has informed the individual that the right of
access will be reinstated upon completion of the research.
(iv) An individual's access to protected health information that is
contained in records that are subject to the Privacy Act... may be denied, if the denial of access under the Privacy Act would meet the
requirements of that law.
(v) An individual's access may be denied
if the protected health information was obtained
from someone other than a health care provider under a promise of confidentiality
and the access requested would be reasonably likely
to reveal the source of the
information."
45 CFR Sec. 164.524(a)(2) [Emphasis
added.]
DECISIONS:
-
Subsection
51.30(4)(b)5 allows access without consent “...to qualified staff members of the department... as is necessary to determine
progress and adequacy of treatment...” Thus the State Grievance Examiner is allowed to obtain otherwise confidential
records without the informed consent of the complainant. (Level IV
decision in Case No. 98-SGE-02 on 1/22/99.)
-
A
discharged patient asked the hospital to return
his personal journal. It
should be returned to him since it
is his property, whether or not the hospital considered it part of
his treatment record. (Level III decision in Case No. 01-SGE-06 on
10/18/01.)
-
A
parent filed a complaint about a doctor giving the wrong pills to her minor children.
But she refused to sign
a consent form allowing the Level I Client Rights Specialist (CRS)
access to the children’s treatment records.
This limited the CRS to trying to resolve the matter
informally. Although it
was the parent’s right to refuse access to the treatment records, it
prevented the CRS from conduct
a complete, formal
grievance investigation. Given
the lack of a formal grievance, the
appeal to Level III was denied.
(Level III decision in Case No. 02-SGE-01 on 5/2/02.)
-
Sec.
51.30(4)(e), Stats., requires that, when
records are released, “a notation
shall be made in the records by the custodian thereof that includes
the following: the name of the person to whom the information is
released; the identification of the information released; the purpose
of the release; and the date of the release”. Handwritten
notes in the margin of records request documents, due to their
brief nature, are unlikely to satisfy all the requirements of this statute.
Subsequent to April 14, 2003, entities releasing records must
also comply with the even more stringent federal Health Information
Portability and Accountability Act (HIPAA). (Level IV decision in Case No. 02-SGE-04 on 9/19/03,
overturning the Level III.)
-
A
complainant was denied access to the records of his joint meetings with his wife and her
therapist. There was
no rights violation because
these were individual sessions with his wife in which he was invited
to be present. If his
wife wants access to those records, she
has the right request copies from the facility. (Level IV decision
in Case No. 02-SGE-07 on 3/10/04.)
-
A
client wanted copies of all of her records, including the private
psychotherapy notes that her therapist made during the course of
her treatment. Those notes
were not part of her treatment
record as defined in § 51.30(1)(b), Wis. Stats., because they
were maintained for personal use during the provision of therapy and they
were not shared with
others. (Level III
Grievance Decision in Case No. 04-SGE-07, affirmed at Level IV on
8/15/05)
-
The
full panoply of patient rights did not attach to an independent
outpatient evaluation. However,
the complainant still had rights in regard to access to the records
generated by that evaluation. (Level
IV decision in Case No. 06-SGE-09 on 9/27/06
Last Updated: November 08, 2006 |
