Important Changes Made to Wisconsin’s Health Care Records Law

Hinshaw Health Law Alert

May 26, 2010
Hinshaw Health Law Alert

The most recent Wisconsin state budget, 2009 Wisconsin Act 28 (“the Act”), made important changes to Wis. Stat. ch. 146, expanding the definitions of “patient health care records,” “health care provider” and “treatment records,” and the rights of patients and their representatives to access such “patient health care records” and “treatment records.” This alert provides an overview of the changes.

Expanded Definitions of “Patient Health Care Records” and “Health Care Provider”
In Wisconsin, the term “patient health care records" means all records related to a patient’s health prepared by or under the supervision of a health care provider. The Act broadened the definition of “health care provider” to include ambulance service providers, emergency medical technicians and first responders, and expanded the definition of “patient health care records” to include the records made by these providers in administering emergency care procedures to, and handling and transporting sick, disabled or injured individuals. The Act also expanded the definition of patient health care records to include billing statements and invoices for treatment or services provided by health care providers. These changes bring state law into greater harmony with the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), which has long treated such records, bills and invoices as “protected health information.”

Expanded Right to Inspection and Copies of Health Care Records
The Act requires health care providers, once notice is given, to make patient health records available during business hours to the patient, or person authorized by him or her, and prohibits any charge for this opportunity for inspection. The Act also clarifies that a patient’s right to request an inspection of his or her health care records may also be exercised by persons authorized by the patient. Previously, the law was less precise, stating that this right was held by a patient or “other person.” 

In addition, the Act requires health care providers to provide copies of requested records if a patient or a person authorized by him or her requests copies, provides informed consent (as that term is defined by statute) and pays the applicable fees. (See Wisconsin Sets Statutory Fee Schedules for Copies of Health Care Records). The Act originally provided a 21-day deadline for providing the copies. But this time period was eliminated from the legislation by gubernatorial veto. However, there is a statutory deadline requiring that a health care provider's report regarding a patient’s X-ray be provided within 30 days, or that the X-ray must be provided to another health care provider of the patient's choice within the same time period (presuming informed consent is provided and fees are paid). Deadlines for the provision of health care records under HIPAA continue to apply. In general, health care providers must provide copies of requested health care records within 30 days if the records are stored onsite and within 60 days if they are stored offsite. See 45 C.F.R. 164.524(b)(2).

Patients’ Right to Electronic Copies of Health Care Records
Under the Act, a health care provider must provide copies in a digital or electronic format upon request, unless its records system does not provide for the creation or transmission of records in this format. In that case, the health care provider must furnish a written explanation for why the requested format is unavailable. If the requestor elects to receive paper copies in lieu of digital or electronic copies, the written explanation may be provided with the paper copies. Wisconsin Governor Jim Doyle vetoed a provision of the Act which would have limited the fee a health care provider could charge for digital or electronic copies to a single $5 charge, noting that this low rate might deter the adoption of electronic health records, and clarifying his intent that providers should be able to charge a “reasonable” fee rate for providing copies in an electronic or digital format that is no more than the paper copy rate. Note that a limit on the costs of providing electronic copies is also imposed by the federal Health Information Technology for Economic and Clinical Health Act (HITECH), which requires that health care providers give patients electronic copies of their HIPAA-protected health information, if such information is maintained electronically, and prohibits them from charging more than their labor costs in responding to a request for such electronic records.

Clarification of Chapter 51’s Definition of “Treatment Records”
The Act also clarified the definition of “treatment records” related to services provided to individuals for mental illness, developmental disabilities, alcoholism or drug dependence. The Act includes in the definition of “treatment records,” those records created by licensed psychologists or licensed mental health professionals who are not affiliated with a county department or treatment facility. Given the broad definition of “treatment facility,” these records were arguably already protected by Wis. Stat. ch. 51, but their inclusion is now explicit. Additionally, a grievance procedure has been established to address complaints that professionals not affiliated with a county department or a treatment facility have failed to comply with Chapter 51.

Rights of Domestic Partners Recognized
In response to the enactment of Wis. Stat. ch. 770, which provides legal recognition of registered domestic partnerships in the state, domestic partners of deceased patients have been added to the list of persons who can provide informed consent under Wis. Stat. ch. 146 on a patient’s behalf for the release of health care records. 

In addition, the Act extended the same disclosure rights to domestic partners that have previously existed for spouses, parents, adult children and siblings under Wis. Stat. ch. 51.

For more information, please contact Angela Rust or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.