Legislative Update: Wisconsin Avoids Adverse Changes to Medical Records Fees and Access, For Now
For attorneys working on personal injury suits, automobile accidents, worker’s compensation claims, and in so many other areas of the law, health care records[i] are a daily business expense. Whether representing plaintiffs or defendants, policyholders or insurers, or employees or employers, attorneys must be able to reliably predict litigation-related costs in order to best advise their clients and offer cost-effective legal services.
To that end, Wisconsin law limits the fees that a health care provider can charge to produce copies of patient medical records.[ii] However, state law does not specifically address electronic records, which has led to inconsistent administration across the state, even as nearly all health care records today are created and stored in an electronic format.
The issue of what fees, if any, that providers can legally charge for copies of electronic records is currently being litigated before the Wisconsin Supreme Court. Meanwhile, conflicting policies to address the issue were presented to the Wisconsin Legislature this year, with both ultimately failing to pass. This article will begin by reviewing the statutory history and case law behind the issue and then compare the two proposals.
II. Statutory History
For more than 40 years, Wisconsin law has required health care providers to produce copies of health care records for patients and their authorized representatives “upon payment of reasonable costs.”[iii] In 2002, the Wisconsin Legislature directed the state Department of Health Services to issue an administrative rule setting maximum allowable fees for copies of medical records, based on the department’s estimate of the actual costs of producing the records.[iv]
In 2011, the Wisconsin Legislature created a fee schedule, including automatic adjustments for inflation, establishing allowable per-page fees for paper and microfilm record copies, a per-print fee for X-ray copies, as well as actual shipping costs and taxes. Certification and retrieval fees can be charged on a per-request basis to requesters other than a patient or a patient’s authorized representative.[v]
Since this fee schedule was established, most health care providers have adopted an electronic health records (EHR) system, meaning that today most medical records are created and stored originally in an electronic format. For example, according to the federal office for health information technology:
As of 2019, about three-quarters of office-based physicians (72%) and nearly all non-federal acute care hospitals (96%) had adopted a certified EHR. This marks substantial progress from 2013 when only 59% of hospitals and 48% of physicians had adopted a basic EHR with clinician notes.[vi]
Wisconsin law does not explicitly address a fee for copies of electronic records, although it did at one time.[vii] This has led to varying arrangements among health care providers, medical records vendors, and those who regularly make record requests, such as attorneys and insurers. This in turn has led parties to seek clarification and resolution from the courts.
III. Case Law
Wisconsin law includes a civil cause of action for both willful and negligent violations of its medical records provisions, including the limits on fees.[viii] Various lawsuits filed under this provision have alleged that health care providers and records vendors overcharged patients and their attorneys. For instance, a class action lawsuit against a hospital and a records management company is underway after the District II Court of Appeals last year upheld the circuit court’s certification of a class.[ix]
Since the establishment of a fee schedule in 2011, several cases involving records fees have reached the Wisconsin Supreme Court. In 2017, the court held in Moya v. HealthPort Technologies[x] that an attorney authorized in writing by a client via a HIPAA release form[xi] qualified as a “person authorized by the patient”[xii] and thus should not have been charged certification and retrieval fees[xiii] for copies of his client’s records.
Late last year, the Wisconsin Supreme Court held in Townsend v. ChartSwap that the vendor ChartSwap “is not a health care provider” as defined in the records access statutes “and, therefore, it is not subject to the fee restrictions.”[xiv] Following its decision in Townsend, the court mooted a class action case against another medical records vendor, under the same reasoning that the company was not a “health care provider” and thus not subject to the fee schedule.[xv]
Most recently, in March of this year, the Wisconsin Supreme Court agreed to hear an appeal in Banuelos v. University of Wisconsin Hospitals and Clinics Authority.[xvi] Banuelos requested copies of her records for her attorneys from the health system commonly known as UW Health. Banuelos and her attorneys received electronic copies of the records along with an invoice. The invoice charged Banuelos for the electronic records based on the maximum allowable fees for paper copies. Banuelos sued, alleging that the fees were charged to her unlawfully.[xvii]
The circuit court dismissed Banuelos’ complaint, reasoning that because state law makes no mention of a limit on fees for electronic records, Banuelos’ claim could not prevail.[xviii] The District IV Court of Appeals reversed, reasoning Wisconsin’s fee schedule “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,” and thus providers cannot charge anything for electronic copies.[xix]
The Wisconsin Supreme Court is considering UW Health’s challenge to the appellate court’s finding. No matter the outcome in Banuelos, the lack of an explicit statutory fee limit for electronic records has caused problems for practitioners who need a reliable system for obtaining records at a predictable, reasonable cost.
IV. Changes Proposed by a Medical Records Vendor
Earlier this year, Ciox Health, a large medical records management company, proposed changes to state law. The company services several major health systems and hospitals in Wisconsin, responding to records requests on their behalf. The main feature of the vendor’s proposal is a per-page fee schedule for electronic records:
· 90 cents per page for the first 25 pages
· 67 cents per page for pages 26 to 50
· 44 cents per page for pages 51 to 100
· 26 cents per page for pages 101 and above up to a maximum of $300
Moreover, Ciox proposes narrowing the definition of a “person authorized by the patient” to access medical records. Current law exempts a patient and “any person authorized in writing by the patient”[xx] from certification and retrieval fees,[xxi] which are presently capped at $9.38 and $23.45 per request, respectively.[xxii]
The vendor’s proposal would limit this to “any person authorized in writing by the patient to make health care decisions for the patient” (emphasis added). This change would make it more difficult and expensive for a patient’s attorney or insurer to obtain copies of his or her records, in particular by allowing providers to assess certification and retrieval fees to almost any requestor, even those with written patient authorization such as a signed HIPAA release form.
This is a direct reference to and an attempt to undo the Wisconsin Supreme Court’s decision in Moya. Indeed, Moya defendant HealthPort Technologies merged with several other health care information companies to form Ciox Health while Moya was being litigated.[xxiii] Accordingly, Ciox’s proposal increases the allowable retrieval fee to $30, a 50 percent increase over the $20 retrieval fee established in 2011. The proposal also would allow providers and vendors to charge a $20 fee for any request resulting in no records.
All of this adds up to a financial windfall for health information managers, at the expense of Wisconsin attorneys and insurers and the consumers and employers that they serve.
V. Changes Proposed by Wisconsin Attorneys and Insurers
The policy proposal described above is problematic, primarily because the concept of a per-page fee does not match with the idea of a record that is created, stored, and shared electronically. To contest the vendor’s proposal and advance an alternative solution, WDC partnered with the state’s civil trial bar (the Wisconsin Association for Justice or WAJ) and the Wisconsin Insurance Alliance. Our coalition presented a proposal, developed by WAJ, including several straightforward provisions.
a. Setting a Flat Fee for Electronic Records
The core of the coalition’s proposal, in contrast to the per-page fee sought by Ciox Health, is a flat per-request fee of $6.50 to provide electronic copies of medical records. By comparison, for a 100-page document, the vendor’s proposed fee schedule works out to $61.25 for an electronic record, while a provider can currently charge $81 for a paper copy of the same (excluding the certification and retrieval fees or shipping costs that might apply).[xxiv] That fee for an electronic record would be about 75 percent of the allowable charge for a paper copy.
Health information management companies have never explained how or why it costs nearly the same amount to prepare and deliver an electronic record as compared to a paper one. The coalition’s proposed flat rate of $6.50 matches the federal limit on what providers and vendors can charge a patient requesting an electronic copy of his or her own records.[xxv] For several years, under federal rules, the $6.50 rate also applied to electronic records requests from a patient’s authorized representative, such as an attorney or insurer. However, the application of the patient rate to third parties was invalidated because of a lawsuit brought by Ciox Health.[xxvi]
b. Requiring Providers to Furnish Electronic Copies Upon Request
The second piece of the coalition’s proposal is to require that, “If requested by the patient or by a person authorized by the patient, the health care provider shall provide electronic copies of all patient health care records that were either created in electronic format or are stored in electronic format by the health care provider.” This change would provide much-needed clarity and reliability by ensuring that requestors can obtain copies of electronic records in their native format (and, at a lower cost).
At one time, Wisconsin law required providers to furnish records in an electronic format upon request whenever possible. This language was repealed when the current fee schedule was established in 2011. It is not clear why the legislature chose to remove any mention of electronic records from these provisions. Notably, in Banuelos, the appellate court rejected UW Health’s argument that this repeal demonstrated the Wisconsin Legislature’s intent to exempt electronic records from any kind of fee limit.[xxvii]
c. Treating Records Vendors as Health Care Providers
The final piece of the coalition’s proposal would add “An agent, independent contractor, or release of information vendor of any health care provider” to the definition of “health care provider” that applies to the statutes on access to health care records. This would address the state supreme court’s Townsend decision, which found that the statutory fee limits do not apply to records management companies and that those companies cannot be held liable for overcharging for copies of records because they are not “health care providers” as defined in that section of the statutes. Clearly, as a policy matter, it is desirable for attorneys and insurers that the same fee limits apply to any entity that responds to records requests, whether it is a hospital, clinic, or independent practice, or an agent, contractor, or vendor working on a provider’s behalf.
VI. Proposed Compromise on Complex Record Sets
Ciox responded to the coalition’s proposal by arguing that a flat per-request fee of $6.50 does not cover the cost of producing some sets of electronic records, in particular “blended record sets” containing a mix of paper and electronic records and “legacy paper records” that have been scanned into an electronic format. As a compromise, the coalition suggested an additional provision in the fee schedule limited to blended and legacy record sets:
For electronic copies of patient health care records that were not created electronically, but are stored by the provider in electronic format, a per page fee of 20 percent of the rate applicable to paper copies… up to a maximum charge of $26 per request.
As the attorney/insurer coalition wrote in a February 9 letter to a legislative leader, “Allowing per page fees for records that require substantial review and processing represents a genuine compromise that serves the interests of records providers as well as the individuals and businesses who must pay these costs.”
The Wisconsin Legislature adjourned its biennial regular session on March 8, effectively killing any outstanding proposals and keeping the status quo in place with respect to medical records law. Because this issue arose during the final few months of the session, there was not enough time for it to move through the typical legislative process, absent some extraordinary political pressure.
Yet, Wisconsin attorneys continue to need clarity and consistency when it comes to health care records access and fees. Health care providers and the records vendors they use will also remain interested in this issue, particularly if the Wisconsin Supreme Court upholds the appellate court’s decision in Banuelos. It appears very likely that the Wisconsin Legislature will be faced with this issue during the next regular legislative session, which will begin in January 2023.
Adam Jordahl is the Communications & Government Relations Manager for the Hamilton Consulting Group, a full-service government affairs firm located in Madison. On behalf of the firm and its clients, including Wisconsin Defense Counsel, he monitors legislation, rules, and public meetings, researches policy issues, and produces reports and communications. Adam earned a B.A. in religious studies and sociology from Rice University in Houston, graduating cum laude with distinction for his senior thesis on internet memes and political messaging.
[i] Wisconsin law refers to “patient health care records.” This article uses the terms “health care records” and “medical records” interchangeably.
[ii] Wis. Stat. § 146.83(3f).
[iii] Wisconsin Laws of 1979, Chapter 221 at 1184, available at: https://docs.legis.wisconsin.gov/1979/related/acts/221 (last visited June 6, 2022).
[iv] 2001 Wisconsin Act 109 at 152, available at: https://docs.legis.wisconsin.gov/2001/related/acts/109.pdf (last visited June 6, 2022).
[v] 2011 Wisconsin Act 32 at 405-6, available at: https://docs.legis.wisconsin.gov/2011/related/acts/32.pdf (last visited June 6, 2022).
[vi] Office of the National Coordinator for Health Information Technology, “National Trends in Hospital and Physician Adoption of Electronic Health Records,” available at: https://www.healthit.gov/data/quickstats/national-trends-hospital-and-physician-adoption-electronic-health-records (last visited June 6, 2022).
[vii] See Section V, Part b of this article.
[viii] Wis. Stat. § 146.84.
[ix] Hammetter v. Verisma Systems, 2021 WI App 53, 399 Wis. 2d 211, 963 N.W.2d 874.
[x] Moya v. HealthPort Technologies, 2017 WI 45, 375 Wis. 2d 38, 894 N.W.2d 405.
[xi] A form authorizing the disclosure of protected health information under the federal Health Insurance Portability and Accountability Act or HIPAA.
[xii] Wis. Stat. § 146.81(5).
[xiii] Wis. Stat. § 146.83(3f)(b)4-5.
[xiv] Townsend v. ChartSwap, 2021 WI 86, ¶ 2, 399 Wis 2d. 599, 967 N.W.2d 21.
[xv] Rave v. SVA Healthcare Services, 2022 WI 3, 400 Wis. 2d 384, 968 N.W.2d 703.
[xvi] Banuelos v. University of Wisconsin Hospitals and Clinics Authority, 2021 WI App 70, 399 Wis. 2d 568, 966 N.W.2d 78.
[xvii] Id. ¶ 2.
[xviii] Id. ¶ 4.
[xix] Id. ¶ 15.
[xx] Wis. Stat. § 146.81(5).
[xxi] Wis. Stat. § 146.83(3f)(b)4-5.
[xxii] Wisconsin Department of Health Services, “Schedule of Health Care Provider Records Fees July 1, 2021 – June 30, 2022,” available at: https://www.dhs.wisconsin.gov/wisact146/medical-records-fee.pdf (last visited June 6, 2022).
[xxiii] Ciox Health, “About Us,” available at: https://www.cioxhealth.com/about-us/ (last visited June 9, 2022).
[xxiv] Wis. Department of Health Services, supra.
[xxv] U.S. Department of Health and Human Services, “Individuals’ Right under HIPAA to Access their Health Information 45 CFR § 164.524,” available at: https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html (last visited June 10, 2022).
[xxvi] See Jacob Simpson, “HIPAA $6.50 Copy Fee Limitation Does Not Apply to Lawyers and Other Third Party Record Requests” (2020) for a discussion of the federal side of this issue, available at: https://www.bswllp.com/hipaa-650-copy-fee-limitation-does-not-apply-to-lawyers-and-other-third-party-record-requests (last visited June 10, 2022).
[xxvii] See the appellate court’s discussion of this issue in Banuelos, 399 Wis. 2d 568, ¶¶ 36-37.