Client Rights: Minors, Records

The information provided below relates to individuals under the age of 18 who are receiving services for developmental disability, mental health, and/or substance use. The rules are complex. The information provided below does not constitute legal advice. It is intended to be used as general guidance on these issues. For more information, review the following publication: Rights of Minors Receiving Services for Development Disability, Mental Health, and Substance Use, P-01844 (PDF).  

In general, a parent/guardian has a right to access the treatment records of a minor; however, a parent/guardian who has been denied periods of physical placement may not have access.

May a parent/guardian of a minor/person adjudicated incompetent have access to that person’s court or treatment records?

Yes, unless there is an exception listed on this webpage. Wis. Stat. § 51.30(5)(b)(1).

May a minor or a facility deny a parent/guardian access to protected health information?

Under the age of 14 No Generally, no, unless the parent/guardian requesting the access to records has been denied periods of physical placement with the child. Wis. Stat. § 51.30(5)(bm).
14 years of age or over No Generally, no, unless that parent/guardian has been denied periods of physical placement with the child. Wis. Stat. § 51.30(5)(bm) Access may also be denied if the minor is developmentally disabled and files a written objection to such access with the custodian of the records. Wis. Stat. § 51.30(5)(b).


Developmentally Disabled Minors Records
A developmentally disabled minor aged 14 or older must be notified of the right to file a written objection to parent/guardian access to his or her treatment records and that notification must be documented in the minor’s treatment record. Wis. Admin. Code DHS 92.06(3).  

Substance Use Treatment Records

  • A minor’s drug or alcohol abuse treatment records may only be released with the consent of both the minor and the minor’s parent/guardian. Wis. Admin. Code DHS 92.06(2)  A minor’s outpatient or detox records (Wis. Stat. § 51.47(2)) can only be released with the consent of the minor if he or she is 12 years or older. Wis. Admin. Code DHS 92.06(2).  
  • Note: Section 42 CFR 2.14(b) provides that when a minor can obtain treatment for alcohol abuse or drug abuse under state law without the parent/guardian’s approval, only the minor’s consent is required for disclosure of records of that treatment. 

May a provider refuse to disclose a minor’s health records to a parent/guardian?

  • A health care provider may refuse to disclose a minor’s records to a parent/guardian if, in the provider’s professional judgment, the provider believes that disclosure would endanger the minor. 45 C.F.R. § 164.502(g)(5) and Wis. Admin. Code § DHS 92.05(1)(b)(1).
  • Also, a health care provider may refuse to disclose a minor’s records to a parent/guardian if a parent/guardian has been denied periods of physical placement. Wis. Stat. § 51.30(5)(bm).  
  • Access to medication and physical health issues may not be restricted. 

May a minor have access to his or her own treatment and court records?

Under the age of 14  Yes The minor must have access to court records but only in the presence of a parent, guardian, counsel, guardian ad litem, judge, or a staff member of the treatment facility. Wis. Stat. § 51.30(5)(b)(2).
Over the age of 14 Yes The minor must have access to his or her own court and treatment records. Wis. Stat. § 51.30(5)(b)(2).

 

  • Generally, access to some treatment records by a person receiving treatment may be restricted by the director of the facility, but access to records of medications and medical treatments must never by denied the individual at any time. Wis. Stat. § 51.30(4)(d)(1). 
  • After discharge, the individual has a right to receive a copy of all records.
  • The facility may require a reasonable and uniform charge for a copy of records. Wis. Stat. § 51.30(d)

May a minor authorize disclosure of protected health information without parent/guardian consent?

Generally, informed consent of the subject individual is required for release of protected health information..

  • All treatment records must remain confidential and are privileged to the subject individual.
  • Protected health information may be released only to designated persons with the informed written consent of the subject individual or to the persons designated in the law. Wis. Stat. § 51.30(4)(a).   

Informed consent is required for release of any protected health information. Informed consent for release of information from court or treatment records to an individual, agency, or organization must be in writing and must contain the following: 

  • The name of the individual, agency, or organization to which the disclosure is to be made.
  • The name of the subject individual whose treatment record is being disclosed.
  • The purpose or need for the disclosure.
  • The specific type of information to be disclosed.
  • The time period during which the consent is effective.
  • The date on which the consent is signed. 
  • The signature of the individual or person legally authorized to give consent for the individual. Wis. Stat. § 51.30(2).  
Under the age of 14 No Only the parent/guardian can consent to the release of confidential court or treatment records. Wis. Stat. § 51.30(5)(a) 
Over the age of 14 Yes Consent to disclose must meet requirements in Wis. Stat. § 51.30(5).


More information about accessing the records of minors can be found in Rights of Minors Receiving Services for Developmental Disability, Mental Health, and Substance Use, P-01844 (PDF).

What if a minor, who is receiving services for mental health or developmental disability, wishes to share information? 

Limited information can be shared if involvement with a parent or guardian who is directly involved with care is verified by the minor’s physician, psychologist, or by a person other than the spouse, domestic partner, parent, adult child, or sibling who is responsible for providing treatment to the subject individual, and is needed to: 

  • Assist in the provision of care or monitoring of treatment. 
  • The request for treatment records must be in writing, by the requester, except in an emergency as determined by the person verifying the involvement of the parent, adult child, or sibling. 

Unless the subject individual has been adjudicated incompetent in this state, the person verifying the involvement must notify the subject individual about the release of his or her treatment records. 

Treatment records released under this section are limited to the following: 

  • A summary of the subject individual's diagnosis and prognosis. 
  • A listing of the medication the individual has received and is receiving. 
  • A description of the subject individual's treatment plan. Wis. Stat. § 51.30(4)(b)20. 

When a minor is on unauthorized absence from a facility, under some circumstances, some information may be released. Wis. Stat. § 51.30(4)(cm).

Any time records are released, a notation must be made in the client’s record that includes the name of the person information was released to, the information released, the purpose of the release, and the date of the release. Wis. Stat. § 51.30(4)(e).

Can the records of minors who have been committed under Wis. Stat. ch. 51 be kept with all the minor’s court records?

No. Those records must be kept separately. Wis. Stat. § 51.30(5)(c).

What happens if these records laws are violated?

  • If a person affected by these rules believes the rules were violated, the concern can be processed as a grievance under Wis. Stat. § 51.61(5) or under the federal Health Information Portability and Accountability Act (HIPPA). 
  • It is not necessary to use the grievance procedure before bringing any civil action or filing a criminal complaint. 
  • If the court determines that the violator acted knowingly and willfully, the violator must be liable for such damages as may be proved together with exemplary damages of up to $25,000 for each violation, together with costs and reasonable actual attorney fees. 
  • The plaintiff does not need to have suffered or have been threatened with actual damages. The individual may recover costs and reasonable actual attorney fees if he or she prevails. Wis. Stat. § 51.30(8) and (9).

 

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Last Revised: May 16, 2019