Chapter 146

146.82(5)(c)2. 2. A court of record orders the redisclosure.

146.82(5)(c)3. 3. The redisclosure is limited to the purpose for which the patient health care record was initially received.

146.82 History History: 1979 c. 221; 1983 a. 398; 1985 a. 29, 241, 332, 340; 1987 a. 40, 70, 127, 215, 233, 380, 399; 1989 a. 31, 102, 334, 336; 1991 a. 39; 1993 a. 16, 27, 445, 479; 1995 a. 98, 169, 417; 1997 a. 35, 114, 231, 272, 292, 305; 1999 a. 32, 78, 83, 114, 151; 2001 a. 38, 59, 69, 105; 2003 a. 281; 2005 a. 187, 344, 387, 388, 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 45, 106, 108, 130; 2009 a. 28, 276, 362; 2011 a. 32, 161; 2013 a. 20, 334; 2015 a. 55, 351; 2017 a. 59; 2019 a. 109; 2021 a. 23, 130; s. 13.92 (2) (i).

146.82 Annotation Because under s. 905.04 (4) (f) there is no privilege for chemical tests for intoxication, results of a test taken for diagnostic purposes are admissible in an operating a motor vehicle while under the influence trial without patient approval. City of Muskego v. Godec, 167 Wis. 2d 536, 482 N.W.2d 79 (1992).

146.82 Annotation Patient billing records requested by the state in a fraud investigation under s. 46.25 [now s. 49.22] may be admitted into evidence under the exception to confidentiality found under sub. (2) (a) 3. State v. Allen, 200 Wis. 2d 301, 546 N.W.2d 517 (Ct. App. 1996), 95-0792.

146.82 Annotation This section does not restrict access to medical procedures and did not prevent a police officer from being present during an operation. State v. Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct. App. 1998), 97-2744.

146.82 Annotation The provision of confidentiality for patient health records is not an absolute bar to the release of information without the patient’s informed consent. Sub. (2) provides numerous exceptions. Information of previous assaultive behavior by a nursing home resident was not protected by the physician-patient privilege and was subject to release by “lawful court order.” Crawford v. Care Concepts, Inc., 2001 WI 45, 243 Wis. 2d 119, 625 N.W.2d 876, 99-0863.

146.82 Annotation In the event of a release of confidential health information in violation of the federal Health Insurance Portability and Accounting Act of 1996 (HIPAA) or this section, the proper remedy is not suppression of the released information. Neither HIPAA nor this section provides for suppression of evidence as a remedy for a violation. Suppression is warranted only when evidence has been obtained in violation of a defendant’s constitutional rights or if a statute specifically provides for suppression as a remedy. State v. Straehler, 2008 WI App 14, 307 Wis. 2d 360, 745 N.W.2d 431, 07-0822.

146.82 Annotation This section does not reach beyond protection of health care records. A nurse’s verbal statements based upon the nurse’s observations are not protected by this section. State v. Straehler, 2008 WI App 14, 307 Wis. 2d 360, 745 N.W.2d 431, 07-0822.

146.82 Annotation This section does not apply when a health care organization’s employee merely accesses a patient health care record without disclosing any information from the record to anyone outside the organization. Interpreting this section to apply to the dissemination of patient health care records from the organization holding the records to its own employees would assuredly lead to unreasonable results. Wall v. Pahl, 2016 WI App 71, 371 Wis. 2d 716, 886 N.W.2d 373, 15-1230.

146.82 Annotation Disclosure of patient health care records in Wisconsin. Lehner. WBB Aug. 1984.

146.82 Annotation Confidentiality of Medical Records. Meili. Wis. Law. Feb. 1995.

146.82 Annotation New Federal Privacy Rule for Health Care Providers, Part II: Balancing Federal and Wisconsin Medical Privacy Laws. Hartin. Wis. Law. June 2003.

146.82 Annotation Attorney Access To and Use of Medical Records. Stone. Wis. Law. Aug. 2003.

146.82 Annotation Practice Tips: Attorney Access to Medical Records. Stone. Wis. Law. Oct. 2003.

146.83 146.83 Access to patient health care records.

146.83(1b) (1b) Notwithstanding s. 146.81 (5), in this section, a “person authorized by the patient” includes an attorney appointed to represent the patient under s. 977.08 if that attorney has written informed consent from the patient to view and obtain copies of the records.

146.83(1c) (1c) Except as provided in s. 51.30 or 146.82 (2), any patient or person authorized by the patient may, upon submitting a statement of informed consent, inspect the health care records of a health care provider pertaining to that patient at any time during regular business hours, upon reasonable notice.

146.83(1f) (1f) 

146.83(1f)(am) (am) If a patient or person authorized by the patient requests copies of the patient’s health care records under this section for use in appealing a denial of social security disability insurance, under 42 USC 401 to 433, or supplemental security income, under 42 USC 1381 to 1385, the health care provider may charge the patient or person authorized by the patient no more than the amount that the federal social security administration reimburses the department for copies of patient health care records.

146.83(1f)(bm) (bm) If the department requests copies of a patient’s health care records for use in determining eligibility for social security disability insurance, under 42 USC 401 to 433, or supplemental security income, under 42 USC 1381 to 1385, the health care provider may charge no more than the amount that the federal social security administration reimburses the department for copies of patient health care records.

146.83(1f)(cm) (cm) Except as provided in sub. (1g), a health care provider may not charge a patient or a person authorized by the patient more than 25 percent of the applicable fee under sub. (3f) for providing one set of copies of a patient’s health care records under this section if the patient is eligible for medical assistance, as defined in s. 49.43 (8). A health care provider may require that a patient or person authorized by the patient provide proof that the patient is eligible for medical assistance before providing copies under this paragraph at a reduced charge. A health care provider may charge 100 percent of the applicable fee under sub. (3f) for providing a 2nd or additional set of copies of patient health care records for a patient who is eligible for medical assistance.

146.83(1g) (1g) The requirement under sub. (1f) (cm) to provide one set of copies of records at a reduced charge if the patient is eligible for medical assistance does not apply if the health care provider is the department or the department of corrections.

146.83(1m) (1m) 

146.83(1m)(a) (a) A patient’s health care records shall be provided to the patient’s health care provider upon request and, except as provided in s. 146.82 (2), with a statement of informed consent.

146.83(1m)(b) (b) The health care provider under par. (a) may be charged reasonable costs for the provision of the patient’s health care records.

146.83(2) (2) The health care provider shall provide each patient with a statement paraphrasing the provisions of this section either upon admission to an inpatient health care facility, as defined in s. 50.135 (1), or upon the first provision of services by the health care provider.

146.83(3) (3) The health care provider shall note the time and date of each request by a patient or person authorized by the patient to inspect the patient’s health care records, the name of the inspecting person, the time and date of inspection and identify the records released for inspection.

146.83(3f) (3f) 

146.83(3f)(a) (a) Except as provided in sub. (1f) or s. 51.30 or 146.82 (2), if a person requests copies of a patient’s health care records, provides informed consent, and pays the applicable fees under par. (b), the health care provider shall provide the person making the request copies of the requested records.

146.83(3f)(b) (b) Except as provided in sub. (1f), a health care provider may charge no more than the total of all of the following that apply for providing the copies requested under par. (a):

146.83(3f)(b)1. 1. For paper copies: $1 per page for the first 25 pages; 75 cents per page for pages 26 to 50; 50 cents per page for pages 51 to 100; and 30 cents per page for pages 101 and above.

146.83(3f)(b)2. 2. For microfiche or microfilm copies, $1.50 per page.

146.83(3f)(b)3. 3. For a print of an X-ray, $10 per image.

146.83(3f)(b)4. 4. If the requester is not the patient or a person authorized by the patient, for certification of copies, a single $8 charge.

146.83(3f)(b)5. 5. If the requester is not the patient or a person authorized by the patient, a single retrieval fee of $20 for all copies requested.

146.83(3f)(b)6. 6. Actual shipping costs and any applicable taxes.

146.83(3f)(c) (c)

146.83(3f)(c)1. 1. In this paragraph, “consumer price index” means the average of the consumer price index for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.

146.83(3f)(c)2. 2. On each July 1, beginning on July 1, 2012, the department shall adjust the dollar amounts specified under par. (b) by the percentage difference between the consumer price index for the 12-month period ending on December 31 of the preceding year and the consumer price index for the 12-month period ending on December 31 of the year before the preceding year. The department shall notify the legislative reference bureau of the adjusted amounts and the legislative reference bureau shall publish the adjusted amounts in the Wisconsin Administrative Register.

146.83(4) (4) No person may do any of the following:

146.83(4)(a) (a) Intentionally falsify a patient health care record.

146.83(4)(b) (b) Conceal or withhold a patient health care record with intent to prevent or obstruct an investigation or prosecution or with intent to prevent its release to the patient, to his or her guardian, to his or her health care provider with a statement of informed consent, or under the conditions specified in s. 146.82 (2), or to a person with a statement of informed consent.

146.83(4)(c) (c) Intentionally destroy or damage records in order to prevent or obstruct an investigation or prosecution.

146.83 History History: 1979 c. 221; 1989 a. 56; 1993 a. 27, 445; 1997 a. 157; 2001 a. 109; 2005 a. 387; 2009 a. 28; 2011 a. 32; 2013 a. 342.

146.83 Annotation Sub. (4) (b) clearly and unambiguously applies only to the concealment or withholding of “patient health care records.” “Patient health care records” means all records related to the health of a patient prepared by or under the supervision of a health care provider and had three salient facets, for purposes of this case: 1) a patient health care record must be a “record”; 2) the record must have been prepared by or under the supervision of a health care provider; and 3) the record must relate to the patient’s health. Wall v. Pahl, 2016 WI App 71, 371 Wis. 2d 716, 886 N.W.2d 373, 15-1230.

146.83 Annotation The plaintiff in this case failed to state a claim that the defendant health care provider violated sub. (4) (b). The plaintiff did not allege that the defendant withheld any record when it alleged that the defendant concealed the results of an internal investigation into why and under what authority its employees had accessed the plaintiff’s health care records. Any records the defendant might have kept regarding its internal investigation would not have related to the plaintiff’s health or any treatment or services received. Accordingly, such information, even if reduced to a record, would not have constituted a patient health care record, as that term is defined in s. 146.81 (4). Wall v. Pahl, 2016 WI App 71, 371 Wis. 2d 716, 886 N.W.2d 373, 15-1230.

146.83 Annotation Because “person authorized by the patient” is defined in s. 146.81 (5) to include “any person authorized in writing by the patient,” an attorney authorized by his or her client in writing via a federal Health Insurance Portability and Accountability Act release form to obtain the client’s health care records is a “person authorized by the patient” under sub. (3f) (b) 4. and 5. and is therefore exempt from certification charges and retrieval fees under those subdivisions. Moya v. Aurora Healthcare, Inc., 2017 WI 45, 375 Wis. 2d 38, 894 N.W.2d 405, 14-2236.

146.83 Annotation The text of sub. (3f) (b) regulates only those charges made by health care providers. Therefore, a company that is not a health care provider but provides health care records on behalf of a health care provider is not subject to the fee restrictions in sub. (3f) (b). Neither common law principles of agency nor the plain meaning of s. 990.001 (9) supports the conclusion that an agent is personally liable for charging more for health care records than the statute permits its principal to charge. Townsend v. ChartSwap, LLC, 2021 WI 86, 399 Wis. 2d 599, 967 N.W.2d 21, 19-2034.

146.83 Annotation Although sub. (3f) provides for the imposition of fees for copies of medical records in certain formats, it does not permit health care providers to charge fees for patient records in an electronic format because it does not enumerate electronic formats as one of the three formats for which a health care provider may charge a fee. Banuelos v. University of Wisconsin Hospitals & Clinics Authority, 2023 WI 25, 406 Wis. 2d 439, 988 N.W.2d 627, 20-1582.

146.83 Annotation Wisconsin courts have applied the two-year limitations period under s. 893.93 (2) (a) to actions that principally benefit the public at large, a “statute penalty,” and the six-year limitations period under s. 893.93 (1) (a) to actions that principally benefit the plaintiff at issue. Because a claim under sub. (3f) (b) is primarily private in nature and does not result in a statute penalty for the public’s benefit, the six-year limitations period of s. 893.93 (1) (a) applies. Although s. 146.84 (1) (b) and (bm) authorize exemplary damages, what matters is who, on balance, the cause of action benefits—the private individual or the general public. Smith v. RecordQuest, LLC, 989 F.3d 513 (2021).

146.835 146.835 Parents denied physical placement rights. A parent who has been denied periods of physical placement under s. 767.41 (4) (b) or 767.451 (4) may not have the rights of a parent or guardian under this chapter with respect to access to that child’s patient health care records under s. 146.82 or 146.83.

146.835 History History: 1987 a. 355; 2005 a. 443 s. 265.

146.836 146.836 Applicability. Sections 146.815, 146.82, 146.83 (4) and 146.835 apply to all patient health care records, including those on which written, drawn, printed, spoken, visual, electromagnetic or digital information is recorded or preserved, regardless of physical form or characteristics.

146.836 History History: 1999 a. 78.

146.836 Annotation This section does not serve as an omnibus statute, intending to supersede in scope all statutes that reference health care records. Rather, the four enumerated statutes cover matters of content and confidentiality, and there is nothing in the text to indicate that its circumference is intended to expand beyond that narrow field. It neither limits the scope of s. 146.83 (3f) (a) nor is it rendered superfluous by the definition of “patient health care records” in s. 146.81 (4). Banuelos v. University of Wisconsin Hospitals & Clinics Authority, 2023 WI 25, 406 Wis. 2d 439, 988 N.W.2d 627, 20-1582.

146.84 146.84 Violations related to patient health care records.

146.84(1) (1) Actions for violations; damages; injunction.

146.84(1)(a) (a) A custodian of records incurs no liability under par. (bm) for the release of records in accordance with s. 146.82 or 146.83 while acting in good faith.

146.84(1)(b) (b) Any person, including the state or any political subdivision of the state, who violates s. 146.82 or 146.83 in a manner that is knowing and willful shall be liable to any person injured as a result of the violation for actual damages to that person, exemplary damages of not more than $25,000 and costs and reasonable actual attorney fees.

146.84(1)(bm) (bm) Any person, including the state or any political subdivision of the state, who negligently violates s. 146.82 or 146.83 shall be liable to any person injured as a result of the violation for actual damages to that person, exemplary damages of not more than $1,000 and costs and reasonable actual attorney fees.

146.84(1)(c) (c) An individual may bring an action to enjoin any violation of s. 146.82 or 146.83 or to compel compliance with s. 146.82 or 146.83 and may, in the same action, seek damages as provided in this subsection.

146.84(2) (2) Penalties.

146.84(2)(a) (a) Whoever does any of the following may be fined not more than $25,000 or imprisoned for not more than 9 months or both:

146.84(2)(a)1. 1. Requests or obtains confidential information under s. 146.82 or 146.83 (1c) or (3f) under false pretenses.

146.84(2)(a)2. 2. Discloses confidential information with knowledge that the disclosure is unlawful and is not reasonably necessary to protect another from harm.

146.84(2)(a)3. 3. Violates s. 146.83 (4).

146.84(2)(b) (b) Whoever negligently discloses confidential information in violation of s. 146.82 is subject to a forfeiture of not more than $1,000 for each violation.

146.84(2)(c) (c) Whoever intentionally discloses confidential information in violation of s. 146.82, knowing that the information is confidential, and discloses the information for pecuniary gain may be fined not more than $100,000 or imprisoned not more than 3 years and 6 months, or both.

146.84(3) (3) Discipline of employees. Any person employed by the state or any political subdivision of the state who violates s. 146.82 or 146.83, except a health care provider that negligently violates s. 153.50 (6) (c), may be discharged or suspended without pay.

146.84(4) (4) Exceptions. This section does not apply to any of the following:

146.84(4)(a) (a) Violations by a nursing facility, as defined under s. 49.498 (1) (i), of the right of a resident of the nursing facility to confidentiality of his or her patient health care records.

146.84(4)(b) (b) Violations by a nursing home, as defined under s. 50.01 (3), of the right of a resident of the nursing home to confidentiality of his or her patient health care records.

146.84 History History: 1991 a. 39; 1993 a. 445; 1999 a. 9, 79; 2009 a. 28; 2011 a. 32.

146.84 Annotation Sub. (1) (b) does not preclude certification of a class action in a suit to recover unreasonable fees charged for copies of health care records. Cruz v. All Saints Healthcare System, Inc., 2001 WI App 67, 242 Wis. 2d 432, 625 N.W.2d 344, 00-1473.

146.84 Annotation Sub. (1) (c) specifies that only “an individual” may sue to enjoin a violation of s. 146.82 or 146.83. Not only do the provisions in ss. 146.82 to 146.84 not create a right to enjoin the planned release of records for entities such as the plaintiff business trade associations’ member businesses, they expressly exclude them from that right by categorically identifying who may be a potential plaintiff. Wisconsin Manufacturers & Commerce v. Evers, 2021 WI App 35, 398 Wis. 2d 164, 960 N.W.2d 442, 20-2081.

146.84 Annotation Affirmed on other grounds. 2022 WI 38, 401 Wis. 2d 699, 977 N.W.2d 374, 20-2081.

146.84 Annotation Sub. (1) (b) provides that “any person” may be held liable for knowingly and willfully violating the provisions of s. 146.83. However, the text of s. 146.83 (3f) (b) regulates only those charges made by health care providers. Therefore, only a health care provider that charges more than the fees permissible under s. 146.83 (3f) (b) would fall within the parameters of both sub. (1) (b) and s. 146.83 (3f) (b). Although sub. (1) (b) refers to “any person,” it is not an enforcement mechanism solely for s. 146.83. It also relates to violations of other statutes. Townsend v. ChartSwap, LLC, 2021 WI 86, 399 Wis. 2d 599, 967 N.W.2d 21, 19-2034.

146.84 Annotation During the time period when Moya, 2016 WI App 5, was the law—December 1, 2015, through May 3, 2017—a patient’s attorneys were excluded from the fee exemptions under s. 146.83 (3f) (b) 4. and 5. Because the patient’s attorneys were not exempt based on the law at the time, there could be no negligent, willful, or knowing violation under sub. (1) (b) or (bm) for charges issued to them under s. 146.83 (3f) (b) 4. or 5. during that time period. Fotusky v. ProHealth Care, Inc., 2023 WI App 19, 407 Wis. 2d 554, 991 N.W.2d 502, 21-1395.

146.84 Annotation Wisconsin courts have applied the two-year limitations period under s. 893.93 (2) (a) to actions that principally benefit the public at large, a “statute penalty,” and the six-year limitations period under s. 893.93 (1) (a) to actions that principally benefit the plaintiff at issue. Because a claim under s. 146.83 (3f) (b) is primarily private in nature and does not result in a statute penalty for the public’s benefit, the six-year limitations period of s. 893.93 (1) (a) applies. Although sub. (1) (b) and (bm) authorize exemplary damages, what matters is who, on balance, the cause of action benefits—the private individual or the general public. Smith v. RecordQuest, LLC, 989 F.3d 513 (2021).

146.87 146.87 Federal registration numbers for prescribers of controlled substances.

146.87(1) (1) In this section:

146.87(1)(a) (a) “Controlled substance” has the meaning given in s. 961.01 (4).

146.87(1)(b) (b) “Federal registration number” means the registration number required under 21 USC 822 for practitioners who prescribe controlled substances.

146.87(1)(c) (c) “Health care provider” has the meaning given in 42 USC 1320d (3).

146.87(1)(d) (d) “Practitioner” has the meaning given in s. 450.01 (17).

146.87(1)(e) (e) “Prescription order” has the meaning given in s. 450.01 (21).

146.87(2) (2) Beginning on the first day on which small health plans are required to comply with a U.S. Department of Health and Human Services regulation under 42 USC 1320d-2 (b) that requires use of a unique identifier for health care providers, no person may do any of the following:

146.87(2)(a) (a) Require that a practitioner include his or her federal registration number on a prescription order for a drug or device that is not a controlled substance.