April 18, 2023 – Wisconsin law does not authorize a party to charge a patient for his or her electronic medical records, the Wisconsin Supreme Court has held.
Banuelos v. University of Wisconsin Hospitals and Clinics Authority, 2023 WI 25 (April 4, 2023), the supreme court held (4-3) that a statute that specifies the amounts a party can charge for providing medical records is silent as to electronic records.
Justice Ann Walsh Bradley wrote the majority opinion, joined by Justice Rebecca Dallet, Justice Brian Hagedorn, and Justice Jill Karofsky.
Justice Patience Roggensack filed a dissenting opinion. Justice Rebecca Bradley filed a dissenting opinion, joined by Chief Justice Ziegler and Justice Roggensack.
Bill For Electronic Records
In 2020, Beatriz Banuelos requested electronic copies of her medical records from University of Wisconsin Hospitals and Clinics Authority (U.W. Hospitals).
Ciox, a third party that provides services to U.W. Hospitals, sent electronic copies of Banuelos’ records to Banuelos’ attorneys, along with a bill for $109.96. The charges contained in the bill comply with the charges allowed under
Wis. Stat. section 146.83(3f)(b).
Lawsuit; Motion to Dismiss
Banuelos filed a lawsuit in Dane County Circuit Court, seeking declaratory and injunctive relief and damages.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Banuelos argued that because electronic copies of patient health records do not fit within one of the formats listed in section 146.83(3f)(b), the charges allowed by that section were not applicable to her request.
U.W. Hospitals filed a motion to dismiss for failure to state a claim. The circuit court granted the motion.
Court of Appeals Reverses
The Wisconsin Court of Appeals reversed and held that section 146.83(3f)(b) allows a health care provider to charge only for copies of medical records provided in the formats specified in that section.
U.W. Hospitals appealed.
Statute Silent About Electronic Records
Justice A.W. Bradley began her opinion for the majority by pointing out that while section 146.83(3f)(b) establishes the amount a health care provider can charge for copies of medical records, lists paper, microfiche or microfilm, and the print of an x-ray, it’s silent about electronic records.
“There is no provision in the text permitting the charge of fees for copies in formats for which the legislature did not expressly authorize a fee,” A.W. Bradley wrote.
The absence of such a provision, Justice A.W. Bradley concluded, means a health care provider may not charge for electronic records.
A.W. Bradley explained that the legislative history of section 146.83(3f)(b) supported that conclusion.
Justice A.W. Bradley noted that two previous statutes, sections 146.83(1f)(c)3m and 146.83(1k), enacted in 2009, applied to electronic medical records. But in 2011, she pointed out, the legislature repealed those sections.
“The legislature’s chosen actions resulted in the comprehensive list of permitted fees a health care provider may charge for copies of patient health care records,” A.W. Bradley wrote.
“We cannot interpret the subsequently amended statute to permit a charge for copies of electronic records, as doing so would require us to read language back into the statute that is no longer there.”
U.W. Hospitals argued that section 146.83(3f) did not apply to electronic medical records, for two reasons: 1) the wording of section 146.83(3f)(a), which establishes the conditions a requester must satisfy to be entitled to his or her medical records, doesn’t indicate that a request for a patient’s medical records includes electronic records; and 2)
section 146.81(4), which defines “[p]atient health care records,” addresses the substance of a record rather than its format.
The legislature intentionally omitted any reference to electronic records in section 146.83(3f)(a), U.W. Hospitals argued, because
section 146.836 specifies that only
146.82, 146.83(4), and
146.835 apply to electronic records.
Effect on Other Statutes
But Justice A.W. Bradley concluded those arguments failed, for the following reasons: 1) section 146.83(3f) governs access to “copies” of patient health care records, not the actual records; and accepting U.W. Hospitals’ argument regarding section 146.81(4) would affect other statutes that employ that section’s definition of “[p]atient health care records.”
For instance, A.W. Bradley pointed out,
section 146.819(1) requires a health care provider to maintain, delete, or destroy patient health care records upon ceasing practice.
“UW Hospitals’ interpretation suggests that section 146.819(1) requires that a former health care provider must maintain or destroy only physical patient health care records, as records in electronic format would be excluded from this statute’s purview,” Justice A.W. Bradley wrote.
And nothing in the text of section 146.836, A.W. Bradley reasoned, indicated that the legislature intended that statute to have the wide effect that U.W. Hospitals argued for.
Roggensack Dissent: Ciox Not A Health Care Provider
Justice Roggensack argued that Banuelos’ claims should fail because Ciox was not a health care provider subject to section 146.83(3f)(b).
“If the legislature chooses to cause health care providers to incur liability for acts of a business associate, this is a policy choice the legislature can make by amending the statute,” Roggensack wrote.
“However, as the statute is written, it regulates only health care providers for charges that health care providers impose,” Justice Roggensack wrote.
“The majority opinion never quotes or analyzes facts alleged in Banuelos’ Complaint. Instead, it sets out facts that it creates to enable it to get to where it wants to go.”
R.G. Bradley Dissent: Silence=Freedom
In her dissent, Justice R.G. Bradley drew a different conclusion from the fact that section 146.83(3f)(b) is silent regarding electronic records.
That silence, R.G. Bradley argued, means that health care providers are free to charge for electronic records, subject to federal law.
“In the absence of constitutionally legitimate regulation, people do not require the State’s permission to engage in economic activity,” R.G. Bradley wrote.
“The majority converts the legislature’s silence … into a mandate that health care providers provide [electronic records] at no charge,” Justice R.G. Bradley wrote. “Had the legislature wished to impose such an obligation on health care providers, it would have done so explicitly.”