2023 Wisconsin Statutes & Annotations › Chapter 146 - Miscellaneous health provisions. › 146.83 - Access to patient health care records.

146.83
Access to patient health care records.
(1b)
Notwithstanding s. 146.81 (5), in this section, a “person authorized by the patient" includes an attorney appointed to represent the patient under s. 977.08 if that attorney has written informed consent from the patient to view and obtain copies of the records.
(1c)
Except as provided in s. 51.30 or 146.82 (2), any patient or person authorized by the patient may, upon submitting a statement of informed consent, inspect the health care records of a health care provider pertaining to that patient at any time during regular business hours, upon reasonable notice.
(1f)
(am)
If a patient or person authorized by the patient requests copies of the patient's health care records under this section for use in appealing a denial of social security disability insurance, under 42 USC 401 to 433, or supplemental security income, under 42 USC 1381 to 1385, the health care provider may charge the patient or person authorized by the patient no more than the amount that the federal social security administration reimburses the department for copies of patient health care records.
(bm)
If the department requests copies of a patient's health care records for use in determining eligibility for social security disability insurance, under 42 USC 401 to 433, or supplemental security income, under 42 USC 1381 to 1385, the health care provider may charge no more than the amount that the federal social security administration reimburses the department for copies of patient health care records.
(cm)
Except as provided in sub. (1g), a health care provider may not charge a patient or a person authorized by the patient more than 25 percent of the applicable fee under sub. (3f) for providing one set of copies of a patient's health care records under this section if the patient is eligible for medical assistance, as defined in s. 49.43 (8). A health care provider may require that a patient or person authorized by the patient provide proof that the patient is eligible for medical assistance before providing copies under this paragraph at a reduced charge. A health care provider may charge 100 percent of the applicable fee under sub. (3f) for providing a 2nd or additional set of copies of patient health care records for a patient who is eligible for medical assistance.
(1g)
The requirement under sub. (1f) (cm) to provide one set of copies of records at a reduced charge if the patient is eligible for medical assistance does not apply if the health care provider is the department or the department of corrections.
(1m)
(a)
A patient's health care records shall be provided to the patient's health care provider upon request and, except as provided in s. 146.82 (2), with a statement of informed consent.
(b)
The health care provider under par. (a) may be charged reasonable costs for the provision of the patient's health care records.
(2)
The health care provider shall provide each patient with a statement paraphrasing the provisions of this section either upon admission to an inpatient health care facility, as defined in s. 50.135 (1), or upon the first provision of services by the health care provider.
(3)
The health care provider shall note the time and date of each request by a patient or person authorized by the patient to inspect the patient's health care records, the name of the inspecting person, the time and date of inspection and identify the records released for inspection.
(3f)
(a)
Except as provided in sub. (1f) or s. 51.30 or 146.82 (2), if a person requests copies of a patient's health care records, provides informed consent, and pays the applicable fees under par. (b), the health care provider shall provide the person making the request copies of the requested records.
(b)
Except as provided in sub. (1f), a health care provider may charge no more than the total of all of the following that apply for providing the copies requested under par. (a):
1.
For paper copies: $1 per page for the first 25 pages; 75 cents per page for pages 26 to 50; 50 cents per page for pages 51 to 100; and 30 cents per page for pages 101 and above.
2.
For microfiche or microfilm copies, $1.50 per page.
3.
For a print of an X-ray, $10 per image.
4.
If the requester is not the patient or a person authorized by the patient, for certification of copies, a single $8 charge.
5.
If the requester is not the patient or a person authorized by the patient, a single retrieval fee of $20 for all copies requested.
6.
Actual shipping costs and any applicable taxes.
(c)
1.
In this paragraph, “ consumer price index" means the average of the consumer price index for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.
2.
On each July 1, beginning on July 1, 2012, the department shall adjust the dollar amounts specified under par. (b) by the percentage difference between the consumer price index for the 12-month period ending on December 31 of the preceding year and the consumer price index for the 12-month period ending on December 31 of the year before the preceding year. The department shall notify the legislative reference bureau of the adjusted amounts and the legislative reference bureau shall publish the adjusted amounts in the Wisconsin Administrative Register.
(4)
No person may do any of the following:
(a)
Intentionally falsify a patient health care record.
(b)
Conceal or withhold a patient health care record with intent to prevent or obstruct an investigation or prosecution or with intent to prevent its release to the patient, to his or her guardian, to his or her health care provider with a statement of informed consent, or under the conditions specified in s. 146.82 (2), or to a person with a statement of informed consent.
(c)
Intentionally destroy or damage records in order to prevent or obstruct an investigation or prosecution.
History:  1979 c. 221; 1989 a. 56; 1993 a. 27, 445; 1997 a. 157; 2001 a. 109; 2005 a. 387; 2009 a. 28; 2011 a. 32; 2013 a. 342.
Sub. (4) (b) clearly and unambiguously applies only to the concealment or withholding of “patient health care records.” “Patient health care records” means all records related to the health of a patient prepared by or under the supervision of a health care provider and had three salient facets, for purposes of this case: 1) a patient health care record must be a “record”; 2) the record must have been prepared by or under the supervision of a health care provider; and 3) the record must relate to the patient's health. Wall v. Pahl, 2016 WI App 71, 371 Wis. 2d 716, 886 N.W.2d 373, 15-1230.
The plaintiff in this case failed to state a claim that the defendant health care provider violated sub. (4) (b). The plaintiff did not allege that the defendant withheld any record when it alleged that the defendant concealed the results of an internal investigation into why and under what authority its employees had accessed the plaintiff's health care records. Any records the defendant might have kept regarding its internal investigation would not have related to the plaintiff's health or any treatment or services received. Accordingly, such information, even if reduced to a record, would not have constituted a patient health care record, as that term is defined in s. 146.81 (4). Wall v. Pahl, 2016 WI App 71, 371 Wis. 2d 716, 886 N.W.2d 373, 15-1230.
Because “person authorized by the patient" is defined in s. 146.81 (5) to include “any person authorized in writing by the patient," an attorney authorized by his or her client in writing via a federal Health Insurance Portability and Accountability Act release form to obtain the client's health care records is a “person authorized by the patient" under sub. (3f) (b) 4. and 5. and is therefore exempt from certification charges and retrieval fees under those subdivisions. Moya v. Aurora Healthcare, Inc., 2017 WI 45, 375 Wis. 2d 38, 894 N.W.2d 405, 14-2236.
This section permits a health care provider to charge for providing requested copies of patient health care records only those fees enumerated in sub. (3f) that apply to the request. In this case, fees that the provider charged the requester were unlawful under sub. (3f) because the requester requested and received copies in an electronic format, and there are no statutorily enumerated fees for electronic copies. Sub. (3f) (b) defines the total universe of fees that a provider may collect from a requester for the service of fulfilling a request for patient health care records under sub. (3f) (a). Banuelos v. University of Wisconsin Hospitals & Clinics Authority, 2021 WI App 70, 399 Wis. 2d 568, 966 N.W.2d 78, 20-1582.
The text of sub. (3f) (b) regulates only those charges made by health care providers. Therefore, a company that is not a health care provider but provides health care records on behalf of a health care provider is not subject to the fee restrictions in sub. (3f) (b). Neither common law principles of agency nor the plain meaning of s. 990.001 (9) supports the conclusion that an agent is personally liable for charging more for health care records than the statute permits its principal to charge. Townsend v. ChartSwap, LLC, 2021 WI 86, 399 Wis. 2d 599, 967 N.W.2d 21, 19-2034.
Wisconsin courts have applied the two-year limitations period under s. 893.93 (2) (a) to actions that principally benefit the public at large, a “statute penalty," and the six-year limitations period under s. 893.93 (1) (a) to actions that principally benefit the plaintiff at issue. Because a claim under sub. (3f) (b) is primarily private in nature and does not result in a statute penalty for the public's benefit, the six-year limitations period of s. 893.93 (1) (a) applies. Although s. 146.84 (1) (b) and (bm) authorize exemplary damages, what matters is who, on balance, the cause of action benefits—the private individual or the general public. Smith v. RecordQuest, LLC, 989 F.3d 513 (2021).