Chapter 146

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.

146.87(2)(b) (b) Disclose a practitioner’s federal registration number without the practitioner’s consent for any purpose other than complying with or enforcing federal or state law related to controlled substances.

146.87(2)(c) (c) Use a federal registration number to identify or monitor the prescribing practices of a practitioner, except for the purpose of complying with or enforcing federal or state law related to controlled substances.

146.87(3) (3) A person who violates this section may be required to forfeit not more than $10,000 for each violation.

146.87 History History: 2003 a. 272.

146.89 146.89 Volunteer health care provider program.

146.89(1) (1) In this section:

146.89(1)(d) (d) “Governing body” means the governing body of any of the following:

146.89(1)(d)1. 1. A charter school, as defined in s. 115.001 (1).

146.89(1)(d)2. 2. A private school, as defined in s. 115.001 (3r), that participates in the choice program under s. 118.60 or the Milwaukee Parental Choice Program under s. 119.23 or that, pursuant to s. 115.999 (3), 119.33 (2) (c) 3., or 119.9002 (3) (c), is responsible for the operation and general management of a school transferred to an opportunity schools and partnership program under s. 119.33, subch. IX of ch. 115, or subch. II of ch. 119.

146.89(1)(g) (g) “School” means any of the following:

146.89(1)(g)1. 1. A public elementary school, including an elementary school transferred to an opportunity schools and partnership program under s. 119.33, subch. IX of ch. 115, or subch. II of ch. 119.

146.89(1)(g)2. 2. A charter school, as defined in s. 115.001 (1).

146.89(1)(g)3. 3. A private school, as defined in s. 115.001 (3r), that participates in the choice program under s. 118.60 or the Milwaukee Parental Choice Program under s. 119.23.

146.89(1)(h) (h) “School board” has the meaning given in s. 115.001 (7).

146.89(1)(r) (r) “Volunteer health care provider” means an individual who is one of the following and who receives no income from the practice of his or her health care profession or who receives no income from the practice of that health care profession when providing services at the nonprofit agency specified under sub. (3) or for the school board or governing body specified under sub. (3r):

146.89(1)(r)1. 1. Licensed as a physician under ch. 448, naturopathic doctor under ch. 466, a dentist, dental therapist, or dental hygienist under ch. 447, a registered nurse, practical nurse, or nurse-midwife under ch. 441, an optometrist under ch. 449, a physician assistant under subch. IX of ch. 448, a pharmacist under ch. 450, a chiropractor under ch. 446, a podiatrist under subch. IV of ch. 448, or a physical therapist under subch. III of ch. 448.

146.89 Note NOTE: The cross-reference to subch. IX of ch. 448 was changed from subch. VIII of ch. 448 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of subch. VIII of ch. 448.

146.89(1)(r)2. 2. Certified as a dietitian under subch. V of ch. 448.

146.89(1)(r)3. 3. A nurse practitioner, as defined in s. 255.06 (1) (d).

146.89(1)(r)4. 4. Registered as a pharmacy technician under ch. 450.

146.89(1)(r)5. 5. An individual who holds a valid, unexpired license, certification, or registration issued by another state or territory that authorizes or qualifies the individual to perform acts that are substantially the same as those acts that an individual who is described in subds. 1. to 4., except a dentist, dental therapist, or dental hygienist, is licensed or certified to perform and who performs acts that are within the scope of that license, certification, or registration.

146.89(1)(r)5m. 5m. A psychologist who is licensed under ch. 455.

146.89(1)(r)6. 6. A social worker who holds a certificate granted under subch. I of ch. 457.

146.89(1)(r)7. 7. A marriage and family therapist who is licensed under subch. I of ch. 457 or a professional counselor who is licensed under subch. I of ch. 457.

146.89(1)(r)8. 8. An advanced practice nurse who has a certificate to issue prescription orders under s. 441.16 (2).

146.89(2) (2) 

146.89(2)(a) (a) Subject to par. (am), a volunteer health care provider may participate under this section only if he or she submits a joint application with a nonprofit agency, school board, or governing body to the department and the department approves the application. If the volunteer health care provider submits a joint application with a school board or governing body, the application shall include a statement by the school board or governing body that certifies that the volunteer health care provider has received materials that specify school board or governing body policies concerning the provision of health care services to students and has agreed to comply with the policies. The department shall provide application forms for use under this paragraph.

146.89(2)(am) (am)

146.89(2)(am)1. 1. A volunteer health care provider described in sub. (1) (r) 5. may submit a joint application only with a nonprofit agency to participate under this section.

146.89(2)(am)2. 2. No volunteer health care provider described in sub. (1) (r) 5. may provide services under this section for more than 60 days in any 90 day period.

146.89(2)(b) (b) The department may send an application to the medical examining board for evaluation. The medical examining board shall evaluate any application submitted by the department and return the application to the department with the board’s recommendation regarding approval.

146.89(2)(br) (br) The department may not disapprove the application solely on the basis that the nonprofit agency is organized under the laws of a state other than this state.

146.89(2)(c) (c) The department shall notify the volunteer health care provider and the nonprofit agency, school board, or governing body of the department’s decision to approve or disapprove the application.

146.89(2)(d) (d) Approval of an application of a volunteer health care provider is valid for one year. The department may withdraw approval of an application for failure of the nonprofit agency to comply with this section. If a volunteer health care provider wishes to renew approval, he or she shall submit a joint renewal application with a nonprofit agency, school board, or governing body to the department. The department shall provide renewal application forms that are developed by the department and that include questions about the activities that the individual has undertaken as a volunteer health care provider in the previous 12 months.

146.89(2)(e) (e) The volunteer health care provider shall maintain his or her credentials for his or her health care profession when providing any services under this section.

146.89(3) (3) Any volunteer health care provider and nonprofit agency whose joint application is approved under sub. (2) shall meet the following applicable conditions:

146.89(3)(a) (a) The volunteer health care provider shall provide services under par. (b) without charge, except as provided in sub. (3g) or (3m), at the nonprofit agency, if the joint application of the volunteer health care provider and the nonprofit agency has received approval under sub. (2) (a).

146.89(3)(b) (b) Under this section, the nonprofit agency may provide the following health care services:

146.89(3)(b)1. 1. Diagnostic tests.

146.89(3)(b)2. 2. Health education.

146.89(3)(b)3. 3. Information about available health care resources.

146.89(3)(b)4. 4. Office visits.