Community Grievance Decision Digest

RECORDS, ACCESS BY PATIENTS

The decision summaries regarding this law may be found in the document:
Community Grievance Decision Digest: Decisions. (PDF, 512KB)

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."

ss. 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:

1. 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.)
2. 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.)
3. 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.)

4. 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.)

5. 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.)

6. 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 ss. 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)

7. 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: July 12, 2010