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  • December 21, 2021

    Three Recent Non-COVID Legal Health Law Updates

    For nearly two years, health lawyers have been swamped with issues related to the COVID-19 pandemic. But the “new normal” means juggling those issues on top of more conventional ones. Amy Bradshaw highlights three recent non-COVID developments for her Wisconsin health law colleagues.

    Amy L. Bradshaw

    For health lawyers, COVID issues remain relentless. Recently, speculation about the impact about the Omicron variant has spiked. And on the eve of a key December deadline, a flurry of judicial activity has delayed and created uncertainty about the fate of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for health care workers.

    Although COVID issues can feel all-consuming, we know that other legal issues – including new lawmaking – hasn’t gone away. Here are a few other recent or pending developments.

    Charging Fees for Electronic Copies of Records

    A recent Wisconsin Court of Appeals decision upended the conventional practice of charging a fee for electronic copies of patient health care records. In Banuelos v. Univ. of Wisconsin Hosps. & Clinics Auth.,1 the court interpreted Wis. Stat. section 146.83(3f) (2019-20) to permit a health care provider to charge only those fees enumerated in the statute when providing requested copies of patient health care records.

    Amy Bradshaw, U.W. 2006, is director of legal services at Mercyhealth in Janesville. She has practiced health law since 2006, and was a health policy and health communications consultant prior to law school.

    The court further concluded that the fees charged to the patient were unlawful under section 146.83(3f) because she requested and received copies in an electronic format, and there are no statutorily enumerated fees for electronic copies.

    As of Dec. 4, 2021, a petition for review is pending before the Wisconsin Supreme Court. In an amicus brief, a group of Wisconsin provider associations argue for Supreme Court review. They claim:

    • the appeals court misinterpreted the statute; and

    • that the opinions result in the likelihood of continued legal uncertainty and misplaced public policy.

    Specifically, the amici assert that in 2011, the legislature purposefully decided to rely on the growing body of federal law – as opposed to section 146.83(3f) – to regulate appropriate fees for the provision of electronic access or electronic copies of medical records.

    Further, the amici raise various questions surrounding the scope of the interpretation, which they claim will lead to continued litigation.

    Finally, they explain how the decision will substantially disrupt industry norms and inappropriately transfer the costs of handling such medical records requests away from the requestor to other patients, insurers, and government programs, exacerbating public policy concerns regarding the cost of health care.

    On the Use of Medical Chaperones

    The Wisconsin Medical Examining Board is continuing its rulemaking to incentivize the use of chaperones during breast, genital, and rectal examinations.

    The proposed – and somewhat novel – rule expands unprofessional conduct to create a rebuttable presumption against a licensee accused of unprofessional conduct under Med 10.03(2)(f), if a licensee does not provide a chaperone during a breast, genital, or rectal examination, and does not document in a patient’s health care record the rationale for an unchaperoned breast, genital, or rectal examination.

    If the board applies the presumption, the licensee may rebut the presumption by proving by a preponderance of evidence that the misconduct did not occur. “Chaperone” is defined to mean an appropriately trained third person who has received formal training in the responsibility to protect patient privacy, the confidentiality of health information, and the requirements of clinical practice in the setting where the examination or inspection takes place.

    For a patient who is 12 years of age or under, a patient’s adult family member, legal guardian, or legal custodian may serve as a chaperone.

    The deadline for comments on economic impact is Jan. 3, 2022.

    Co-location Guidance for Hospitals

    On the federal level, the CMS released updated guidance for the evaluation of compliance with Medicare Conditions of Participation (CoPs) related to shared space and services for hospitals co-located with other hospitals or health care entities.

    While regulatory guidance is often welcomed as a way to bring certainty to compliance matters, this update to a 2019 memo removed many examples of compliant and non-compliant arrangements and, without much explanation, excluded critical access hospitals (CAHs) and private physician offices.

    Hospitals and their partners who are co-located or are considering co-location should review their arrangements and policies against the current guidance.

    This article was originally published on the State Bar of Wisconsin’s Health Law Blog. Visit the State Bar sections or the Health Law Section web pages to learn more about the benefits of section membership.


    1Banuelos v. Univ. of Wisconsin Hosps. & Clinics Auth., 2021 WI App 70, 966 N.W.2d 78.

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    Health Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Kristen Nelson and review Author Submission Guidelines. Learn more about the Health Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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