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Wisconsin Medical Record Fee Exemption Applied to Client’s Attorney


Under Wisconsin Statutes section 146.83(3f), a healthcare provider must provide copies of a patient’s healthcare records if a person requests them, provides informed consent, and pays the applicable fees. The statute exempts a “patient or a person authorized by the patient” from paying certification charges and retrieval fees for obtaining copies of the patient’s healthcare records. Wis. Stat. § 146.83(3f)(b)4.-5. The statute does not define “a person authorized by the patient.” The term is defined in another statute as, among other things, “any person authorized in writing by the patient or a healthcare agent designated by the patient as a principal under [chapter] 155 if the patient has been found to be incapacitated under s. 155.05 (2), except as limited by the power of attorney for healthcare instrument.” Wis. Stat. § 146.81(5).

 

A woman was injured and filed a personal injury claim. The woman hired an attorney and authorized the attorney to obtain the woman’s healthcare records by signing a Health Insurance Portability and Accountability Act (HIPAA) release. The release gave the law firm authorization to receive the woman’s health information.

 

The woman’s attorney submitted requests for the woman’s healthcare records. Two healthcare providers, when fulfilling the requests, imposed certification charges and retrieval fees pursuant to the statute. Wis. Stat. § 146.83(3f)(b)4.-5. The attorney paid the certification charges and retrieval fees and then passed the associated costs on to the woman by deducting the costs from the settlement proceeds resulting from the personal injury claim.

 

The woman filed a class action lawsuit on behalf of herself and all other similarly situated persons who had been billed the certification charge and retrieval fee by the healthcare providers for obtaining their own medical records. The complaint argued that the healthcare providers violated Wisconsin Statutes section 146.83(3f)(b)4.-5 when the healthcare providers imposed the certification charges and retrieval fees on the woman’s attorney because the attorney was a “person authorized by the patient.” As a “person authorized by the patient,” the attorney was exempted by law from paying the certification charges and retrieval fees.

 

After limited discovery, the healthcare providers filed a motion for summary judgment. The Milwaukee County Circuit Court denied the motion.

 

The Wisconsin Court of Appeals reversed and remanded the case with instructions to grant the motion for summary judgment. The appellate court determined that the woman’s attorney was not a “person authorized by the patient” and therefore the healthcare providers could impose the certification charges and retrieval fees on the attorney.

 

The Supreme Court of Wisconsin reversed the appellate court’s reversal of the trial court’s denial of the healthcare providers’ motion for summary judgment. The court held that an attorney who was authorized via a HIPAA release form to obtain a client’s healthcare records may benefit from the fee exemption in the statute, Wis. Stat. § 146.83(3f)(b)4.-5, the doctrine of voluntary payment did not bar the woman’s claim, and the woman did not waive the claim.

 

An attorney who was authorized via a HIPAA release form to obtain a client’s healthcare records may benefit from the fee exemption in the Wisconsin statute. The phrase “person authorized by the patient” was defined by statute to include “any person authorized in writing by the patient.” The court reasoned that because the definition used the disjunctive “or,” a person must fall into only one of the categories of persons described in the definition. One of the categories in the definition was “any person authorized in writing by the patient.” An attorney authorized by a client in writing via a HIPAA release form to obtain the client’s healthcare records was a “person authorized by the patient” under Wisconsin law and was, therefore, exempt from certification charges and retrieval fees.

 

The doctrine of voluntary payment did not bar the woman’s claim. The voluntary payment doctrine places upon a party who wishes to challenge the validity or legality of a bill for payment the obligation to make the challenge either before voluntarily making payment, or at the time of voluntarily making payment. The court determined that the legislature’s expressed intent was that a person with a written authorization from a patient does not have to pay the certification charge or retrieval fee for obtaining healthcare records. The application of the common law voluntary payment doctrine would undermine the manifest purposes of the statute. The court concluded that it could not apply the voluntary payment doctrine to the claim.

 

The woman did not waive the claim. The court held that the woman did not waive the ability to obtain healthcare records at a lower cost because the woman chose to authorize an attorney to obtain the healthcare records instead of requesting them herself, thereby voluntarily and intentionally relinquishing the right not to be charged the certification charge and retrieval fee. The court determined that the legislature’s expressed intent that a person with a written authorization from a patient does not have to pay the certification charge or retrieval fee for obtaining healthcare records. Because the application of the common law doctrine of waiver would undermine the manifest purposes of the statute, the court concluded that it could not apply the doctrine of waiver to the claim.

 

The Supreme Court of Wisconsin reversed the appellate court’s reversal of the trial court’s denial of the healthcare providers’ motion for summary judgment.

 

See: Moya v. Aurora Healthcare, Inc., 2017 WI 45, 2017 WL 1739828 (Wisc., May 4, 2017) (not designated for publication).

 

See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure

 

 

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