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Budget Bill Makes Changes Affecting Patient Health Care Records and Treatment Records

Health Law Alert Sarah E. Coyne

Tucked away in the 2009-11 biennial budget bill, 2009 Wisconsin Act 28 (the "Act"), are several noteworthy provisions affecting patient health care records and treatment records. The Act makes significant changes to Chapters 146 (regarding patient health records) and 51 (regarding mental health and treatment records) of the Wisconsin Statutes, as described in detail below. The changes became effective July 1, 2009, except as otherwise provided below.

I. Changes to Chapter 146 of the Statutes

A. Inclusion of Emergency Personnel and First Responders

The Act expands the definition of "health care provider" at Wis. Stat. 146.81(1) to include ambulance service providers, emergency medical technicians and first responders. Similarly, the Act expands the definition of "patient health care records," contained in Wis. Stat. 146.81(4), to include all records made by an ambulance service provider, an emergency medical technician or a first responder in administering emergency care procedures to and handling and transporting sick, disabled or injured individuals. In addition, the definition of "patient health care records" has been further expanded to include billing statements and invoices for treatment or services provided by a health care provider.

B. Expansion of "Person Authorized by the Patient" to Include Domestic Partners

The Act also modifies the definition of "person authorized by the patient" at Wis. Stat. 146.81(5) to include domestic partners. A domestic partner is defined by the newly created Chapter 770 to mean an individual who has signed and filed a declaration of domestic partnership in the office of the register of deeds of the county in which he or she resides.

C. Access to Patient Health Care Records

With respect to Wis. Stat. 146.82, the Act removes all references to "treatment foster homes" and "treatment foster parents." This modification will take effect on the date specified in a notice yet to be provided by the secretary of the Department of Children and Families. This statutory section had previously provided for disclosure without informed consent when a child had been placed, or recommended for placement, in a treatment foster home, to certain agencies or to the treatment foster parents. The section also allowed for disclosure to group home operators, foster parents, residential care centers and juvenile correctional facilities, and these provisions remain unchanged.

The removal of "treatment foster homes" and "treatment foster parents" from the statutory language is reflective of the elimination of treatment foster homes as a separate licensing category, effective January 1, 2010. A person who is licensed to operate a treatment foster home on December 31, 2009 will be deemed to operate a foster home beginning on January 1, 2010. Because Wis. Stat. 146.82 will still allow for disclosure to foster parents, access by those currently classified as treatment foster parents will not be affected.

D. Inspection and Copying

The Act modifies Wis. Stat. 146.83 to provide that if a patient or person authorized by the patient submits a statement of informed consent, he or she may inspect applicable health care records, subject to certain statutory exceptions. Previously, this provision had allowed any patient or "other person" to inspect such records upon submission of a statement of informed consent - it was not specifically stated that an individual must be a person authorized by the patient. Under the Act, Wis. Stat. 146.83 now provides that a health care provider must make patient health care records available for inspection by the patient or person authorized by the patient during regular business hours after receiving notice from the patient or person authorized by the patient. The health care provider is not permitted to charge a fee for such an inspection.

In addition, the Act creates a new Wis. Stat. 146.83(1f), obligating health care providers to provide copies of requested patient health care records if a patient or person authorized by the patient requests copies, provides informed consent and pays the applicable fees described below, subject to certain statutory exceptions. Also, if a patient or person authorized by the patient requests copies of a health care provider's report regarding a patient X-ray, provides informed consent and pays the applicable fees, the health care provider shall provide a copy of the report or provide the X-ray to another health care provider of the patient's choice within thirty (30) days after receiving the request.

E. Fees

With respect to fees for requests by patients or persons authorized by the patient, the Act creates Wis. Stat. 146.83(1f)(c), providing that a health care provider may not charge more than the total of all of the following that apply for providing the requested copies:

  1. For paper copies, 35 cents per page;

  2. For microfiche or microfilm copies, $1.25 per page;
  3. For a print of an X-ray, $10 per image;
  4. For providing copies in digital or electronic format, a currently unspecified charge1;
  5. Actual shipping costs; and
  6. If the patient or person authorized by the patient requests delivery within seven (7) or fewer days of the request for copies, and the health care provider delivers the copies within that timeframe, a fee equal to 10% of the total fees that may otherwise be charged.

However, the fee provisions created by the Act also state that if a patient or person authorized by the patient requests copies for use in appealing a denial of social security disability insurance or supplemental security income, 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. Also, unless the health care provider in question is the department or the department of corrections, a health care provider must not charge a fee for providing one set of copies of a patient's health care records if the patient is eligible for medical assistance.

The Act also creates a new Wis. Stat. 146.83(1h), obligating health care providers to provide copies of patient health care records to persons other than patients or persons authorized by the patients, if such persons request copies, provide informed consent and pay the applicable fees. With respect to fees for requests from persons other than a patient or person authorized by the patient, a health care provider may charge no more than all of the following that apply:

  1. For paper copies, 35 cents per page;

  2. For microfiche or microfilm copies, $1.25 per page;
  3. For a print of an X-ray, $10 per image;
  4. For providing copies in digital or electronic format, a currently unspecified charge;
  5. For certification of copies, $5;
  6. For processing and handling, a single $15 charge for all copies requested;
  7. Actual shipping costs; and
  8. If the requester requests delivery within seven (7) or fewer days after making the request, and the health care provider delivers the copies within that time, a fee equal to 10% of the total fees that may otherwise be charged.

Like Section 146.83(1f), described above, if the department requests copies of a patient's health care records for use in determining eligibility for social security disability insurance or supplemental security income, the health care provider may charge no more than the amount that the federal social security administration reimburses the department.

Prior to the Act, the law had required the Department of Health Services ("DHS") to provide rules to set fees for the provision of patient health records, which DHS did at Wisconsin Administrative Code DHS 117. DHS 117.05 provided that if a patient or personal representative requests copies of health care records, providers could charge: (1) for records other than X-rays, 31 cents per page, plus the actual costs of postage or other means of delivering the requested records; or (2) for X-rays, $5.25 per X-ray copy, plus the actual costs of postage or other means of delivering the requested records. With respect to individuals other than the patient or personal representative, providers were permitted to charge: (1) for records other than X-rays, $12.50 if the request generated up to five (5) pages or $15 if the request generated five (5) or more pages, plus 31 cents per page, plus the actual costs of postage or other means of delivering the requested records; or (2) for X-rays, $5.25 per copy, plus the actual costs of postage or other means of delivering the requested records; and (3) for certifying up to five (5) pages of records, an additional $5, and for certifying five (5) or more pages, an additional $7.50.

Industry organizations, such as the Wisconsin Hospital Association ("WHA"), had opposed the promulgation of DHS 117. WHA stated in a letter to DHS that DHS 117 did not reflect the actual costs of furnishing the services and could thus cause health care providers to lose the cost-efficient option of outsourcing the service.

The Act repeals DHS' authority to promulgate a fee schedule via rule, and it will generally replace the fee provisions contained in DHS 117 with the statutory fee schedule described in this update. WHA also opposed these fee provisions contained in the Act. WHA argued, in a letter to the Senate, that the Act's fee schedule, as originally written in Budget Motion #671, set below-cost fees for copies of medical records. WHA argued that if copy fees are regulated, the law should better reflect actual costs and be indexed annually for inflation, to avoid adding even more costs to the health care system. Some of WHA's specific objections to the Act included the following:

  • Providing copies of medical records is more complex than pushing a button on a copy machine and is instead a time-consuming and highly regulated process.

  • The statutory fees set are far below actual costs in Wisconsin and are also below the fees allowed in neighboring states such as Illinois and Minnesota.
  • A large medical record firm has indicated that they will be forced to either shift costs to health care providers or eliminate their Wisconsin division.
  • Health care providers, in turn, will be forced to shift their costs elsewhere, resulting in higher health care costs for Wisconsin.

Despite industry protests, the fee provisions described herein went into effect at the beginning of July.

F. Electronic Access

In addition, the Act creates a new Wis. Stat. 146.83(1k), requiring health care providers to respond to requests for digital or electronic copies under Wis. Stat. 146.83(1f) and (1h) by providing copies in a digital or electronic format, unless the health care provider's records system does not provide for the creation or transmission of records in a digital or electronic format. If the health care provider's system does not allow for the provision of records in a digital or electronic format, the health care provider must provide the person requesting the digital or electronic records a written explanation for why the copies cannot be provided in a digital or electronic format. The health care provider may include the written explanation with the production of paper copies of the records if the person chooses to receive paper copies.

On a related note, the federal Health Information Technology for Economic and Clinical Health Act ("HITECH"), signed into law on February 17, 2009, also mandates that patients be permitted to access electronic copies of their medical records. HITECH makes many changes to the privacy and security regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), as described in our previous client update. Most relevant here, HITECH provides that, if a covered entity uses or maintains an electronic health record with respect to the protected health information of an individual, the individual must have the right to obtain a copy of their protected health information in an electronic format, if they so choose. Also, the individual must be permitted to direct the covered entity to transmit an electronic copy to an entity or person designated by the individual. Covered entities may not charge a fee greater than their labor costs in responding to a request for electronic records. Accordingly, while the Act does not currently specify fees that may be charged for the provision of electronic records, providers must not charge more than labor costs for providing this service.

II. Changes to Chapter 51 of the Wisconsin Statutes

The Act expands the definition of "treatment records" contained in Wis. Stat. 51.30(1)(b). Previously, the definition of treatment records had been limited to records created in the course of providing services to individuals for mental illness, developmental disabilities, alcoholism or drug dependence that were maintained by the department, by county departments and their staffs and by treatment facilities. Now, the definition also explicitly includes such records maintained by licensed psychologists or licensed mental health professionals who are not affiliated with a county department or treatment facility. This change means records maintained by psychologists and mental health professionals will now clearly receive the heightened protections provided to treatment records by Chapter 51, regardless of whether those professionals are associated with a treatment facility or county department. An argument could be made that records maintained by these professionals were already included within the definition of "treatment records" prior to the Act, due to the broad definition of "treatment facility," but this change makes their inclusion explicit.

In addition, like the changes to Chapter 146, the Act modifies Wis. Stat. 51.30(4)(b) to allow for disclosure of treatment records to a domestic partner if such individual is directly involved in providing care to or monitoring the treatment of the patient and that involvement is appropriately verified. Previously, disclosures to those involved in an individual's care had been limited to spouses, parents, adult children and siblings.

Similarly, the Act mandates disclosure of treatment records to a domestic partner upon request, unless the subject individual has specifically requested that the information be withheld. However, this mandated disclosure at Wis. Stat. 51.30(4)(cm) is limited to notice as to whether the subject individual is a patient at the inpatient facility and, if the individual is no longer a patient at the inpatient facility, the facility or other place, if known, at which the individual is located. Previously, disclosure of this information had been limited to an individual's parent, child, sibling or spouse.

Finally, the Act lays out an additional grievance procedure in Wis. Stat. 51.30(8). Under the Act, a separate grievance resolution procedure option made available to the patient by a mental health professional not affiliated with a county department or treatment facility will apply to failures to comply with Wis. Stat. 51.30 by such a licensed mental health professional. Such grievances will be handled separately from other grievances under Section 51.30.

Health care providers should review their policies and procedures related to the disclosure of patient health care records to ensure that they comply with the provisions of the Act. Those providers that use third-party vendors to outsource copying of records should review their service contracts to ensure the vendor is compliant with the new fee structure for copying costs.

If you have any questions regarding the provisions of the Act or any other issues related to patient health records, please feel free to contact Carrie Norbin Killoran at 414-277-5645 / carrie.killoran@quarles.com, Sarah Coyne at 608-283-2435 / sarah.coyne@quarles.com or your Quarles & Brady attorney.


1 As originally passed, the Act would have permitted only a single $5 charge for all digital or electronic copies requested. In Governor Doyle's veto message, he noted that he would eliminate via partial veto this $5 limitation, with the intent that providers may charge a reasonable fee rate for providing copies in an electronic or digital format that is no more than the paper copy rate. Gov. Doyle noted that the fee limitation as written was a deterrent to providers adopting electronic health records. Further, Gov. Doyle directed DHS, in cooperation with the Wisconsin eHealth Care Quality and Patient Safety Board, to make recommendations on appropriate fees that may be adopted in future legislation.