Maintaining a veteran’s privacy as veterans service officers assist those in need

In 2021, the National Health Statistics Reports published a study that found multiple chronic conditions among veterans was more prevalent than nonveterans overall.

1 Further, depending on when they served, anywhere between 11-30% of veterans

2 have experienced post-traumatic stress disorder.

Given the challenges our veterans face, different federal, state and local agencies have been created to assist our veterans and their families. One such local agency is the county veterans service office.

Wisconsin has long been at the forefront in providing our veterans with well-deserved assistance. In fact, in 1932, the Fond du Lac County Board appointed Leo J. Promen, the first county veterans service officer in the United States.

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Given the nature of the problems our veterans encounter, there is a need to ensure that nothing counties and their CVSOs do compromises a veteran’s right and expectation of privacy in their medical and social affairs. This column will provide a summary of several laws establishing a right to privacy in certain information, thus reinforcing the need to treat many matters impacting veterans in confidence. Nonetheless, this is only an overview and if county officials or CVSOs have any questions surrounding specific legal obligations, they should contact their county’s corporation counsel.

Privacy Concerns — An Overview

CVSOs handle a great deal of private information as they provide an invaluable service by working closely with veterans and their families to provide advice on “any benefits to which they may be entitled or any complaint or problem arising out of such service and render to them and their dependents all possible assistance.”

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As CVSOs deal with a variety of federal and state veteran programs benefits, including disability claims, home loans, medical care and emergency aid grants, it is indisputable they are privy to private medical and financial information about veterans and their families. Therefore, understanding the applicable federal and state privacy laws is a crucial part of their role.

Wisconsin law requires that CVSOs must protect all “information pertaining to military service and to confi dential information contained in applications for benefi ts.”

5 This includes protected health information and other personally identifiable information, the maintenance of which must conform with the federal Health Insurance Portability and Accountability Act (HIPAA) as well as other federal programs and state confidentiality and privacy laws.

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A. Health Care Records Under federal and state law, CVSOs must not disclose or release patient health care records except in specific circumstances.

7 First, if the veteran gives informed consent to release the records, their health care records may be released to an individual or entity. 8 However, this will require CVSOs to obtain the written consent of the veteran or their family member, evincing an understanding they are giving informed consent. 9

Veteran health care records may be disclosed without informed consent in a number of instances, 10 including to certain entities for the purpose of conducting audits, to health care providers if they are rendering assistance to the veteran, for purposes of billing claims, by a “lawful order of a court of record,” or to certain entities or individuals if there is a threat or suspicion of child abuse or neglect.

11 However, in all other instances, CVSOs should carefully protect the privacy rights of veterans and their families by not discussing or providing health care records with anyone else.

B. Mental Health Records Records related to mental health treatment, including those related to alcohol or drug dependence treatment, are more heavily restricted from disclosure than traditional health care records. Typically, written consent from the veteran is required before CVSOs may disclose such records as they are considered confidential.

12 Moreover, certain mental health records, like psychotherapy notes, may never be provided by CVSOs to anyone without written consent.

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While Wis. Stat. 51.30(4)(b) lists situations where CVSOs may disclose mental health records without written consent, which appear similar to those discussed in relation to other health care records, a closer look at this statute makes clear that there are more restrictions placed on mental health records. For example, health care records may be provided to certain health care facilities for the purpose of conducting audits, but mental health records may only be provided to designated entities for the purpose of conducting audits and may only be provided in a way that prevents disclosure of the name or any other identifying information of the individual.

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C. Financial Records CVSOs also have access to veterans and their families’ financial records and must be mindful of the privacy concerns associated with those records. While veterans submit many financial documents along with benefits applications, CVSOs are precluded from disclosing any records which pertain to any application for benefits, except in certain circumstances.

15 There are few exceptions, but the most relevant is for any information that is “required for official use by any agency” of the state of Wisconsin or federal government or any school participating in the Wisconsin Department of Veterans Affairs in response to an official request.

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Conclusion CVSOs have access to a substantial amount of personal, medical, financial and other information about veterans and their families. As indicated above, privacy laws exist to ensure such information is treated carefully so as to avoid disclosure. In addition, however, counties and CVSOs should take great care ensuring that others do not overhear any discussions CVSOs may have with a veteran or their family to avoid seemingly inadvertent disclosures.

There is no doubt CVSOs’ main objective is to properly serve veterans and their families. To help fulfill this mission, state and federal laws recognize a veteran’s right to privacy in certain information. Counties and CVSOs should work together to establish an environment that respects and preserves the privacy interests of veterans.

If you have any questions surrounding the role of the CVSO or the privacy rights discussed in this article, please do not hesitate to contact the association.

Footnotes: 1. Peter Boersma, et al., Multiple Chronic Conditions Among Veterans and Nonveterans: United States, 2015-2018, National Health Statistics Reports, February 23, 2021, www.cdc.gov/nchs/data/nhsr/nhsr153-508.pdf. Note that after adjustments for age, sociodemographic characteristics, weight and smoking status, the only exception to this statistic was for men aged 65 and over. 2. U.S. Department of Veterans Affairs, How Common is PTSD in Veterans?, www.ptsd.va.gov/understand/ common/common_veterans.asp. 3. Mark D. Van Ells, Wisconsin County Veterans Service Offices History, County Veterans Service Officers Association of Wisconsin (as of December 2014).

4. Wis. Stat. § 45.80(5)(a). 5. Wis. Admin. Code VA § 1.10(1m). 6. Id. 7. Wis. Stat. § 146.82(1); 45 C.F.R. § 164.502(a). From this point forward when discussing HIPAA, only Wisconsin statutes will be cited because nothing in Wisconsin law is contrary or less stringent as HIPAA preempts state law. 45 CFR § 160.203.

8. Wis. Stat. § 146.82(1). 9. See Wis. Stat. § 146.81(2) (listing all of the requirements for “informed consent”). 10. There are several not mentioned here. See Wis. Stat. § 146.82(2); Wis. Stat. § 146.82(4) (for the release of a portion of records to certain individuals); Wis. Admin. Code VA § 1.10(8) (to governmental agencies under certain circumstances).

11. Wis. Stat. § 146.82(2).

12. Wis. Stat. § 51.30. 13. Wis. Stat. § 51.30(1)(b); See 45 C.F.R. § 164.501 (discussing what information “psychotherapy notes” does and does not entail).

14. Compare Wis. Stat. § 146.82(2)(a)1 to Wis. Stat. § 51.30(4)(b)1. See also In re Mental Condition of Billy Jo W., 182 Wis.2d 616, 514 N.W.2d 707 (Wis. 1994) (construing the ability to release mental health records found in court records “pursuant to [a] lawful order of the court” narrowly because of the language of s. 51.30 shows such records may only be released if there is a “particular purpose for which” the records are needed, if the person requesting them need the records “to effectuate a stated purpose,” and the information to be obtain must be “limited to that needed to achieve the delineated purpose”).

15. Wis. Admin. Code VA § 1.10(3). 16. Wis. Admin. Code VA § 1.10(8).

This article is reprinted with permission from the May 2022 “Wisconsin Counties” magazine.