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The Impact of 2007 Wisconsin Act 108 on Confidentiality of Treatment Records
Date: April 29, 2008 DQADMHSAS Memo 08-XXX
To: Area Administrators/Assistant Administrators 01
Bureau Directors 01
County Departments of Human Services Directors 01
Tribal Chairpersons/Human Service Coordinators 01
All Providers
From: Otis Woods, Administrator
Division of Quality Assurance
John Easterday, Administrator
Division of Mental Health and Substance Abuse Services
Via: Dan Zimmerman, Division of Mental Health and Substance Abuse Services
Bureau of Prevention Treatment and Recovery
Purpose of Memo:
The purpose of this memo is to advise all providers of the impact of 2007 Wisconsin Act 108 on confidentiality of treatment records and the ability of providers to re-release treatment information to health care providers. This memo also will address the issue of integrating treatment information that is protected under § 51.30, Stats., HFS 92, Wis. Admin. Code, and/or 42 CFR Part 2 with protected health information, per the federal Health Insurance Portability and Accountability Act (HIPAA) requirements.
Background and Changes in the Statutes:
The HIPAA regulations, § 51.30, HFS 92, and 42 CFR Part 2 (see Attachment 1, which contains pertinent sections of these statutes and regulations) each have language that limits disclosures only to persons who have a need to know and only to the extent necessary to accomplish the task at hand. Some health care providers have an appropriate need to access confidential treatment information that is protected under § 51.30, HFS 92 and/or 42 CFR Part 2 in order to appropriately coordinate care and treatment. 2007 Wisconsin Act 108 changed portions of §§ 51.30 and 146.82 that may remove barriers to the release of confidential treatment information from a treatment facility to health care providers; the significant changes are:
· § 51.30 permitted a release of specific data elements from a treatment facility to a related health care entity. The language was broadened to include a few additional data elements and to permit a treatment facility to release the permitted information to a health care provider (as defined in § 146.81, Stats.). Note: Treatment facilities are not required to release confidential treatment information to health care providers; the statute permits these facilities to release information without prior written informed consent. The changes to this part of the statutes do not pertain to substance use treatment programs because 42 CFR Part 2 is more stringent than HIPAA and state statutes. These changes will be effective on October 1, 2008.
· § 146.82 (2) (d) of the statutes was repealed, which will have a significant impact on health care providers. This section required, “For each release of patient health care records under this subsection, the health care provider shall record the name of the person or agency to which the records were released, the date and time of the release and the identification of the records released.”
· § 146.82 (3) (c) of the statutes was repealed, which required, “For each release of patient health care records under this subsection, the health care provider shall record the name of the person or agency to which the records were released, the date and time of the release and the identification of the records released.”
· § 146.82 (4) of the statutes was created to permit the release of a portion of a protected health information to immediate family members and other persons specified in the statute if the patient is determined to be incapacitated or an emergency makes it impracticable to obtain the patient’s consent. The limited release of protected health information under this provision may be made if the health care provider determines, in the exercise of his or her professional judgment, that release of a portion of the patient health care record is in the best interest of the patient:
· § 146.82 (5) of the statutes is created to address issues of redisclosures. The requirements in this section parallel the federal HIPAA regulations.
Integration of Confidential Treatment Information into a Health Care Record:
May a certified mental health program that is part of a larger health care organization (e.g., Gundersen-Lutheran, Dean Clinics, etc.) fully integrate the confidential treatment information from a consumer’s mental health treatment record into the consumer’s general medical record?
Yes, but only with the limited information permitted under § 51.30 (4) (b) 8g. bm. Again, the changes to this part of the statutes do not pertain to substance use treatment programs because 42 CFR Part 2 is more stringent than HIPAA and state statutes.
Are there additional issues if the information is stored electronically versus paper records? Are the answers to these questions different for a certified substance use treatment program? Are there additional issues if the information is stored electronically versus paper records?
There are additional real and perceived barriers to the exchange of confidential treatment information. Most significantly, HFS 92.03 (1) (i) and 42 CFR 2.32 require a written statement that states that the information is confidential and disclosure without patient consent or statutory authorization is prohibited by law. This requirement poses challenges for providers who use electronic records.
General Precaution:
However, there is a significant precaution for a provider that wishes to have an integrated treatment record: Health care providers who receive confidential treatment information released by a treatment facility, as defined in ch. 51, or a substance abuse treatment program, as defined, by 42 CFR Part 2, must comply with the more stringent requirements of the statutes and regulations regarding release and release.
Contact Person for Policy and Program Information:
Dan Zimmerman, Contract Administrator, Bureau of Prevention Treatment and Recovery (608) 266-7072
Attachment 1
The following selected portions of statutes and regulations are provided in the following order:
1. State statutes.
2. State regulations, in numerical order.
3. Federal regulations governing confidentiality of alcohol or other drug abuse (AODA) treatment records.
4. Federal Health Insurance Portability and Accountability Act security and privacy regulations.
51.30 Records.
(1) (ag) “Health care provider” has the meaning given in s. 146.81 (1).
(b) “Treatment records” include the registration and all other records that are created in the course of providing services to individuals for mental illness, developmental disabilities, alcoholism, or drug dependence and that are maintained by the department, by county departments under s. 51.42 or 51.437 and their staffs, and by treatment facilities. Treatment records do not include notes or records maintained for personal use by an individual providing treatment services for the department, a county department under s. 51.42 or 51.437, or a treatment facility, if the notes or records are not available to others.
(4) ACCESS TO REGISTRATION AND TREATMENT RECORDS. (a) Confidentiality of records. Except as otherwise provided in this chapter and ss. 118.125 (4), 610.70 (3) and (5), 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. 118.125 (4), 610.70 (3) and (5), 905.03 and 905.04, or to other designated persons with the informed written consent of the subject individual as provided in this section. This restriction applies to elected officials and to members of boards appointed under s. 51.42 (4) (a) or 51.437 (7) (a).
(b) Access without informed written consent. Notwithstanding par. (a), treatment records of an individual may be released without informed written consent in the following circumstances, except as restricted under par. (c):
8g. To health care providers in a related health care entity, or to any person acting under the supervision of such a health care provider who is involved with an individual’s care, if necessary for the current treatment of the individual. Information that may be released under this subdivision is limited to the individual’s name, address, and date of birth; the name of the individual’s mental health treatment provider; the date of mental health service provided; the individual’s medications, allergies, and diagnosis; and other relevant demographic information necessary for the current treatment of the individual. In this subdivision, “related health care entity” means one of the following:
a. An entity that is within a clinically integrated care setting in which individuals typically receive health care from more than one health care provider.
b. An organized system of health care in which the health care providers hold themselves out to the public as participating in a joint arrangement and jointly participate in activities.
(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.
(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.
Changes to s. 51.30 (4) (b), Stats., as a result of 2007 Wisconsin Act 108 (note: deletions of current wording is shown in strikeout font and additions are shown in underlined font):
SECTION 1. 51.30 (4) (b) 8g. (intro.) of the statutes is renumbered 51.30 (4) (b) 8g. bm. and amended to read:
51.30 (4) (b) 8g. bm. To health care providers in a related health care entity, a health care provider, or to any person acting under the supervision of such a the health care provider who is involved with an individual’s care, if necessary for the current treatment of the individual. Information that may be released under this subdivision is limited to the individual’s name, address, and date of birth; the name of the individual’s mental health treatment provider of services for mental illness, developmental disability, alcoholism, or drug dependence; the date of mental health service any of those services provided; the individual’s medications, allergies, and diagnosis, diagnostic test results, and symptoms; and other relevant demographic information necessary for the current treatment of the individual. In this subdivision, “related health care entity” means one of the following:
SECTION 2. 51.30 (4) (b) 8g. a. of the statutes is repealed. [ed. note: This section that was repealed provides part of the definition of “related health care entity.”]
SECTION 3. 51.30 (4) (b) 8g. am. of the statutes is created to read:
51.30 (4) (b) 8g. am. In this subdivision, “diagnostic test results” means the results of clinical testing of biological parameters, but does not mean the results of psychological or neuropsychological testing.
SECTION 4. 51.30 (4) (b) 8g. b. of the statutes is repealed. [ed. note: This section that was repealed provides part of the definition of “related health care entity.” The above provisions will be effective on October 1, 2008 (on the first day of the 7th month beginning after publication, which was March 31, 2008)].
146.81 Health care records; definitions. In ss. 146.81 to 146.84:
(1) “Health care provider” means any of the following:
(a) A nurse licensed under ch. 441.
(b) A chiropractor licensed under ch. 446.
(c) A dentist licensed under ch. 447.
(d) A physician, physician assistant or respiratory care practitioner licensed or certified under subch. II of ch. 448.
(dg) A physical therapist licensed under subch. III of ch. 448.
(dr) A podiatrist licensed under subch. IV of ch. 448.
(em) A dietitian certified under subch. V of ch. 448.
(eq) An athletic trainer licensed under subch. VI of ch. 448.
(es) An occupational therapist or occupational therapy assistant licensed under subch. VII of ch. 448.
(f) An optometrist licensed under ch. 449.
(fm) A pharmacist licensed under ch. 450.
(g) An acupuncturist certified under ch. 451.
(h) A psychologist licensed under ch. 455.
(hg) A social worker, marriage and family therapist or professional counselor certified under ch. 457.
(hm) A speech–language pathologist or audiologist licensed under subch. II of ch. 459 or a speech and language pathologist licensed by the department of public instruction.
(hp) A massage therapist or bodyworker issued a license of registration under subch. XI of ch. 440.
(i) A partnership of any providers specified under pars. (a) to (hp).
(j) A corporation or limited liability company of any providers specified under pars. (a) to (hp) that provides health care services.
(k) An operational cooperative sickness care plan organized under ss. 185.981 to 185.985 that directly provides services through salaried employees in its own facility.
(L) A hospice licensed under subch. IV of ch. 50.
(m) An inpatient health care facility, as defined in s. 50.135 (1).
(n) A community–based residential facility, as defined in s. 50.01 (1g).
(p) A rural medical center, as defined in s. 50.50 (11).
146.82 Confidentiality of patient health care records.
(1) CONFIDENTIALITY. All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient. This subsection does not prohibit reports made in compliance with s. 146.995, 253.12 (2) or 979.01 or testimony authorized under s. 905.04 (4) (h).
(2) ACCESS WITHOUT INFORMED CONSENT. (a) Notwithstanding sub. (1), patient health care records shall be released upon request without informed consent in the following circumstances:
2. To the extent that performance of their duties requires access to the records, to a health care provider or any person acting under the supervision of a health care provider or to a person licensed under s. 146.50, including medical staff members, employees or persons serving in training programs or participating in volunteer programs and affiliated with the health care provider, if any of the following is applicable: