Sec. DHS 92.04 - Disclosure without informed consent

ยง DHS 92.04. Disclosure without informed consent

(1) AUDITS AND EVALUATION.

(a) Treatment records may be disclosed for management audits, financial audits or program monitoring and evaluation but only as authorized under s. 51.30(4) (b) 1, Stats., and this subsection.

(b) A record of all audits and evaluations shall be maintained at each treatment facility.

(c) Auditors and evaluators shall provide the treatment facility with written documentation regarding their authority to audit or evaluate by reference to statutes, administrative rules or certification by the department.

(2) BILLING OR COLLECTION.

(a) Treatment records may be released for billing or collection purposes only as authorized under s. 51.30(4) (b) 2, Stats., and this subsection.

(b) Any information specified in ch. DHS 1 may be released to the collection authority under ss. 46.03(18) and 46.10, Stats.

Note: Under ss. 46.03(18) and 46.10, Stats., the department is the collection authority for all services provided by the department or boards. Where collection authority has not been delegated, the department's bureau of collections is the only qualified service organization for collections allowed by Wisconsin law. Where collections have been delegated, boards or facilities are agencies of the department for billing and collection purposes.

(c) Patient information may be released to county departments of public welfare or social services only in accordance with the provisions of sub. (13).

(d) Patient information may be released to third-party payers only with informed consent.

(e) Each agency with billing and collection responsibility shall develop further written procedures as needed to ensure confidentiality of billing and collection information. These procedures shall be made available to the department upon request.

Note: Further confidentiality provisions on billing and collections are specified in ss. DHS 1.05 and 1.06.

(3) RESEARCH. Treatment records may be released for purposes of research only as authorized under s. 51.30(4) (b) 3, Stats.

(4) COURT ORDER.

(a) Treatment records may be released pursuant to a lawful court order only as authorized under s. 51.30(4) (b) 4, Stats., and this subsection.

Note: If a treatment facility director, program director or department official believes that the court order is unlawful, that person should bring the order to the attention of his or her agency's legal counsel.

(b) A subpoena, unless signed by a judge of a court of record, is not sufficient to authorize disclosure.

(c) A court order regarding confidential drug or alcohol treatment information shall be in compliance with 42 CFR Part 2, Subpart E.

Note: When a subpoena signed by an attorney or the clerk of court requires the record custodian to appear at the hearing with the records, the custodian should assert the privilege and refuse to turn the records over until ordered to do so by the circuit judge.

(5) PROGRESS DETERMINATION AND ADEQUACY OF TREATMENT.

(a) Treatment records may be made accessible to department and board staff to determine progress and adequacy of treatment or to determine whether a person should be transferred, discharged or released, but only as authorized under s. 51.30(4) (b) 5, Stats., and this subsection.

(b) Treatment information as specified under s. 51.30(4) (b)10, Stats., may also be released to the following state employees and department board members concerning persons under their jurisdiction:

1. Members of the parole board;

2. Members of the special review board for sex crimes;

3. Employees of the juvenile offender review program; and

4. Members of the juvenile corrections reception center's joint planning and review committee.

(6) WITHIN THE TREATMENT FACILITY.

(a) Treatment records maintained in the facility or as computerized records by the provider of data-processing services to the facility may be made available to treatment staff within the facility only as authorized under s. 51.30(4) (b) 6, Stats., and this subsection.

(b) Confidential information may be released to students or volunteers only if supervised by staff of the facility.

(c) Treatment records may be taken from the facility only by staff directly involved in the patient's treatment, or as required by law.

(7) WITHIN THE DEPARTMENT. Treatment records may be made available to department staff only as authorized under s. 51.30(4) (b) 7, Stats., and this chapter. Information may be disclosed to qualified staff of the department from the treatment records of persons who have been committed by a court to the care and custody of the department or who are voluntarily admitted to an institution of the department under chs. 51, 55, 971, or 975, Stats., or who are under probation or parole supervision.

(8) MEDICAL EMERGENCY. Treatment records may be released to a physician or designee for a medical emergency only as authorized under s. 51.30(4) (b) 8, Stats.

(9) TRANSFER OF PERSON INVOLUNTARILY COMMITTED.

(a) Treatment records may be released to a treatment facility which is to receive an involuntarily committed person only as authorized under s. 51.30(4) (b) 9, Stats., and this subsection.

(b) When an individual is to be transferred, the treatment director or designee shall review the treatment record to ensure that no information is released other than that which is allowed under this subsection.

(c) If a summary of somatic treatments or a discharge summary is prepared, a copy of the summary shall be placed in the treatment record.

(d) A discharge summary which meets discharge summary criteria established by administrative rules or accreditation standards shall be considered to meet the requirements for a discharge summary specified under s. 51.30(4) (b) 9, Stats.

(e) Treatment information may be disclosed only to the extent that is necessary for an understanding of the individual's current situation.

(f) Disclosure of information upon transfer of a voluntary patient requires the patient's informed consent, a court order or other provision of law.

(10) PERSONS UNDER THE RESPONSIBILITY OR SUPERVISION OF A CORRECTIONAL FACILITY OR PROBATION AND PAROLE AGENCY.

(a) Information from treatment records may be released to probation and parole agencies and correctional facilities only as authorized under s. 51.30(4) (b) 10., Stats., 42 CFR 2.31 and 2.35 and this subsection.

(b) In addition to the probation and parole agent, only the following persons may have access to information from treatment records:

1. The probation and parole agent's supervisor;

2. The patient's social worker, the social worker's supervisor and their superiors; and

3. Consultants or employees of the division of corrections who have clinical assignments regarding the patients.

(c) When a patient is transferred back from a treatment facility to a correctional facility the confidential information disclosed to the correctional facility shall be restricted to information authorized under s. 51.30(4) (b) 9, Stats.

(d) When a patient is under supervision of a probation and parole agent the confidential information disclosed to the agent shall be restricted to information authorized under s. 51.30(4) (b)10., Stats.

(e) Every person receiving evaluation or treatment under ch. 51, Stats., as a condition of probation or parole shall be notified of the provisions of this subsection by the person's probation and parole agent prior to receiving treatment.

(11) COUNSEL, GUARDIAN AD LITEM, COUNSEL FOR THE INTERESTS OF THE PUBLIC, COURT-APPOINTED EXAMINER.

(a) Treatment records or portions of treatment records may be made accessible to the patient's counsel or guardian ad litem only as authorized under s. 51.30(4) (b)11., Stats., and this section, to the counsel for the interest of the public only as authorized under s. 51.30(4) (b)14., Stats., and this section and to the court appointed examiner only as authorized under s. 51.20(9) (a), Stats., and this section.

Note: 2001 Wis. Act 16 repealed s. 51.30(4) (b) 14., Stats.

(b) A patient's attorney or guardian ad litem, or both, shall have access to alcohol and drug abuse patient treatment records only as authorized under 42 CFR 2.15 and 2.35.

(c) At times other than during normal working hours, patients' attorneys or guardians ad litem, or both, shall have access to those records directly available to staff on duty.

(d) Counsel for the interests of the public may have access to alcohol or drug abuse treatment records only with informed consent of the patient or as authorized under 42 CFR 2.61 to 2.67.

(e) A copy of the records shall be provided upon request. At times other than normal working hours, copies shall be provided only if copy equipment is reasonably available.

(12) NOTICE TO CORRECTIONAL OFFICER OF CHANGE IN STATUS.

(a) A treatment facility shall notify the correctional officer of any change in the patient's status as required under s. 51.30(4) (b)12., Stats.

(b) Release of information from records of alcohol and drug abuse patients shall be in compliance with 42 CFR Part 2, Subpart C.

(13) BETWEEN A SOCIAL SERVICES DEPARTMENT AND A 51 BOARD.

(a) Limited confidential information may be released between a social service department and a 51-board, but only as authorized under s. 51.30(4) (b)15., Stats.

(b) Limited confidential information regarding alcohol and drug abuse patients may be released between a social services department and a 51-board only with the patient's informed consent as authorized under 42 CFR 2.31 and with a qualified service agreement under 42 CFR 2.11(n) and (p).

(14) BETWEEN SUB-UNITS OF A HUMAN SERVICES DEPARTMENT AND BETWEEN THE HUMAN SERVICES DEPARTMENT AND CONTRACTED SERVICE PROVIDERS. Confidential information may be exchanged between sub-units of a human services department, which is the administrative staff of a board organized under s. 46.23, Stats., and between the human services department and service providers under contract to the human services department, as authorized under s. 46.23(3) (e), Stats.

(15) RELEASE TO LAW ENFORCEMENT OFFICERS. Release of limited confidential information to law enforcement officers without a patient's informed consent is permitted only to enable a law enforcement officer to take charge of and return a patient on unauthorized absence from the treatment facility, pursuant to s. 51.39, Stats., to enable a law enforcement officer to determine if an individual is on unauthorized absence from the treatment facility, pursuant to s. 51.30(4) (cm), Stats., or by order of a court.

(a) The treatment director may disclose only the following information to the law enforcement officer acting pursuant to s. 51.39, Stats.:

1. Date, time and manner of escape;

2. Description and picture of the patient;

3. Addresses and phone numbers of relatives or other persons who might be contacted by the patient; and

4. Any other information determined by the treatment director to be of assistance in locating the patient, including advice regarding any potential danger involved in taking custody of the patient.

(b) Any access by law enforcement officers to confidential records other than as provided for in par. (a) and s. 51.30(4) (cm), Stats., requires a court order.

1. A court order authorizing access to alcoholism or drug dependence treatment records shall comply with the requirements of 42 CFR 2.61 to 2.67.

2. A subpoena, unless signed by a judge of a court of record, does not authorize disclosure of treatment records.

(c) Access to treatment records is not authorized for any local, state or federal investigatory agency conducting pre-employment or other clearances or investigating crimes unless the agency presents a statement signed by the patient giving informed consent or a court order.

(d) Access by law enforcement authorities, when allowed pursuant to informed consent or court order, shall always pertain to a specific situation or case. In any situation involving court orders which appear to give authorization for broad or blanket access to records, the treatment director, the program director or the secretary of the department or designee shall seek appropriate legal counsel before disclosing any records.

(16) UNAUTHORIZED ABSENCE. Information from treatment records of patients admitted under s. 971.14 or 971.17, Stats., or under ch. 975, Stats., or transferred under s. 51.35(3) or 51.37, Stats., and who are on unauthorized absence from a treatment facility, may be released only as authorized under s. 51.30(4) (b)12m., Stats.

(Cr. Register, May, 1984, No. 341, eff. 6-1-84; corrections in (2) (b), (15) (intro.) and (b) made under s. 13.92(4) (b) 7, Stats., Register November 2008 No. 635.)

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