Community Grievance Decision Digest

RECORDS, CONFIDENTIALITY OF TREATMENT

THE LAW:

Confidentiality:

Each patient shall..."Have the right to confidentiality of all treatment records..."

§ 51.61(1)(n), Wis. Stats. [Emphasis added.]

Access to Records by Persons Other Than the Patient:

" Confidentiality of records. Except as otherwise provided in this chapter and ss. 905.03 and 905.04, all treatment records shall remain confidential and are privileged to the subject individual. Such records may be released only to the persons designated in this chapter or ss. 905.03 and 905.04, or to other designated persons with the informed written consent of the subject individual as provided in this section..."

§ 51.30(4)(a), Wis. Stats. [Emphasis added.]

NOTE: There follows in sec. 51.30(4)(b) a list of 27 exceptions to the requirement for written informed consent, as well as special limitations on access to drug and alcohol treatment records.

"Destruction, damage, falsification or concealment of treatment records. No person may do any of the following:

1. Intentionally falsify a treatment record.

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 appointed under ch. 880 or to persons with the informed written consent of the subject individual or with intent to prevent or obstruct an investigation or prosecution.

3. Intentionally destroy or damage records in order to prevent or obstruct an investigation or prosecution."

§ 51.30(4)(dm) Wis. Stats. [Emphasis added.]

" GRIEVANCES. Failure to comply with any provisions of this section may be processed as a grievance under s. 51.61(5). However, use of the grievance procedure is not required before bringing any civil action or filing a criminal complaint under this section.

§ 51.30(8), Wis. Stats. [Emphasis added.]

"ACTIONS FOR VIOLATIONS: DAMAGES: INJUNCTION. (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. A custodian of records incurs no liability under this paragraph for the release of records in accordance with this section while acting in good faith.

(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.

(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(9), Wis. Stats. [Emphasis added.]

"PENALTIES: (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:

2. Discloses confidential information under this section with the knowledge that the disclosure is unlawful and not reasonably necessary to protect another from harm.

3. Violates sub. (4)(dm)1., 2. or 3. [Destruction, damage, falsification or concealment of treatment records.]

(b) Whoever negligently discloses confidential information under this section is subject to a forfeiture of not more than $1,000 for each violation.

(bm) Whoever intentionally discloses confidential information under this section, knowing 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(10), Wis. Stats. [Emphasis added.]

"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(11), Wis. Stats. [Emphasis added.]

NOTE: The above includes only a portion of sec. 51.30, Stats., which should be read in its entirety by anyone handling patient records.

" EMPLOYEE ORIENTATION. Directors and program directors shall ensure that persons whose regular duties include requesting, distributing, or granting access to treatment records are aware of their responsibility to maintain the confidentiality of information protected by this chapter and of the criminal and civil liabilities for violations of s. 51.30, Stats.

HFS 92.11, Wis. Admin. Code [Emphasis added.]

[FURTHER NOTE: See also full Chapter HFS 92, Wis. Admin. Code, which codifies Sec. 51.30, Wis. Stats.]

NOTE: The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) took effect on February 14, 2003. Any questions involving confidentiality of treatment records should be reviewed by the facility’s HIPAA Privacy Officer.

Note: See also the Records Access and Records Corrections sections of this digest.

Decisions

Last Updated: November 07, 2006