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HIPAA Policy Changes Required by Recent Wisconsin Legislative Change

June 26, 2006

Wisconsin legislators have been busy making changes concerning when and how access to mental health and other treatment records will be permitted. As a result of this hard work, Wisconsin enacted three laws (2005 Wis. Acts 449, 434 and 485). 2005 Wis. Act 449, which became effective on June 6, 2006, makes three important changes to current law, which affect how health care providers handle these health records.

Three Important Changes to Current Law

  1. Emergency Access Expanded to All Health Care Providers. The act expands the types of providers who may access mental health treatment records in emergency situations to all health care providers. Before the new law, only licensed physicians were able to access these records in cases of emergency; all other health care providers, such as nurses, psychologists, social workers, dentists and pharmacists, were required to obtain informed written consent.

  2. OHCA Sharing of PHI Limited. The act limits mental health treatment information that can be released among entities in an Organized Health Care Arrangement (OHCA). Under HIPAA, health care providers may disclose mental health treatment records, generally, to other health care providers for treatment purposes, and covered entities within an OHCA may disclose protected health information to one another with regard to health care operations activities. HIPAA requires providers to disclose only that information which is minimally necessary to accomplish the intended purpose of the disclosure. Wis. Act 449 specifies the mental health information that entities within an OHCA can disclose to one another, which is: (a) the individual’s name, address, and date of birth; (b) the name of the individual’s mental health treatment provider; (c) the date of mental health service provided; (d) the individual’s medications, allergies and diagnosis; and (e) other relevant demographic information necessary for the current treatment of the individual. This change effectively limits the types of information that covered entities within an OHCA can share for treatment purposes.

  3. Mental Health Record Custodian Immunity Eliminated. The act eliminates a mental health record custodian’s immunity from suit. Before the change in law, record custodians were immune from liability if they released records in accordance with the law while acting in good faith.

Expansion of Record Access Concerning Sexually Violent Persons
2005 Wis. Act 434, which should become effective on August 1, 2006, makes statutory changes relating to the treatment of sexually violent persons. The act changes Wis. Stat. §§ 51.30 and 146.82(2) to allow authorized representatives of the Wisconsin Department of Corrections, Department of Health and Family Services, Department of Justice or a district attorney access to files and records of court proceedings addressing mental health commitments and evaluations, as well as mental health and patient treatment records of individuals who are subject to a sexually violent person commitment proceeding (Wis. Ch. 980). The act allows these recipients to disclose the information contained in the mental health treatment records for any purpose consistent with a Chapter 980 proceeding. The act also permits such individual’s counsel or guardian ad litem and the corporation counsel access to the mental health treatment records so that they may prepare for a sexually violent person commitment proceeding. According to a representative of the Department of Health and Family Services (DHFS), these files and records are held by DHFS-related entities.

Disclosure to Siblings Allowed
2005 Wis. Act 485, which became effective June 14, 2006, permits access of mental health treatment information without informed written consent to an individual’s sibling, in addition to his or her parent, child, or spouse. The release of information is limited to whether an individual is a patient at an inpatient facility and if the individual is no longer a patient there, the facility or other place, if known, at which the individual is located. The new law prohibits disclosure of this information if the individual specifically requests that the information be withheld from the parent, child, sibling or spouse or if there is reasonable cause to believe that disclosure of the information would result in danger to the individual.

Next Steps
Health care providers should modify their HIPAA policies and procedures immediately to reflect these important changes to Wisconsin mental and patient health care treatment records law. HIPAA requires covered entities to change their policies and procedures as necessary to comply with changes in the law.

If you have questions or would like assistance with HIPPA policy and procedure modifications, please contact Barbara Zabawa (608-284-2639 or or any member of the Godfrey & Kahn Health Law Team.

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