Chapter 146

146.82(2)(a)18m. 18m. If the subject of the patient health care records is a child or juvenile who has been placed in a foster home, group home, residential care center for children and youth, or juvenile correctional facility or in a supervised independent living arrangement, including a placement under s. 48.205, 48.21, 938.205, or 938.21, or for whom placement in a foster home, group home, residential care center for children and youth, or juvenile correctional facility or in a supervised independent living arrangement is recommended under s. 48.33 (4), 48.425 (1) (g), 48.837 (4) (c), or 938.33 (3) or (4), to an agency directed by a court to prepare a court report under s. 48.33 (1), 48.424 (4) (b), 48.425 (3), 48.831 (2), 48.837 (4) (c), or 938.33 (1), to an agency responsible for preparing a court report under s. 48.365 (2g), 48.425 (1), 48.831 (2), 48.837 (4) (c), or 938.365 (2g), to an agency responsible for preparing a permanency plan under s. 48.355 (2e), 48.38, 48.43 (1) (c) or (5) (c), 48.63 (4) or (5) (c), 48.831 (4) (e), 938.355 (2e), or 938.38 regarding the child or juvenile, to the foster parent of the child or juvenile or the operator of the group home, residential care center for children and youth, or juvenile correctional facility in which the child or juvenile is placed, or to an agency that placed the child or juvenile or arranged for the placement of the child or juvenile in any of those placements and, by any of those agencies, to any other of those agencies and, by the agency that placed the child or juvenile or arranged for the placement of the child or juvenile in any of those placements, to the foster parent of the child or juvenile or the operator of the group home, residential care center for children and youth, or juvenile correctional facility in which the child or juvenile is placed, as provided in s. 48.371 or 938.371.

146.82(2)(a)19. 19. To a procurement organization, as defined in s. 157.06 (2) (p), for the purpose of conducting an examination to ensure the medical suitability of a body part that is or could be the subject of an anatomical gift under s. 157.06.

146.82(2)(a)20. 20. If the patient health care records do not contain information and the circumstances of the release do not provide information that would permit the identification of the patient.

146.82(2)(a)21. 21. To a prisoner’s health care provider, the medical staff of a prison or jail in which a prisoner is confined, the receiving institution intake staff at a prison or jail to which a prisoner is being transferred or a person designated by a jailer to maintain prisoner medical records, if the disclosure is made with respect to a prisoner’s patient health care records under s. 302.388 or to the department of corrections if the disclosure is made with respect to a prisoner’s patient health care records under s. 302.388 (4).

146.82(2)(a)22. 22. By a person specified in subd. 21. to a correctional officer of the department of corrections who has custody of or is responsible for the supervision of a prisoner, to a person designated by a jailer to have custodial authority over a prisoner, or to a law enforcement officer or other person who is responsible for transferring a prisoner to or from a prison or jail, if the patient health care record indicates that the prisoner has a communicable disease and disclosure of that information is necessary for the health and safety of the prisoner or of other prisoners, of the person whom the information is disclosed, or of any employee of the prison or jail.

146.82(2)(c) (c) Notwithstanding sub. (1), patient health care records shall be released to appropriate examiners and facilities in accordance with s. 971.17 (2) (e), (4) (c), and (7) (c). The recipient of any information from the records shall keep the information confidential except as necessary to comply with s. 971.17.

146.82(2)(cm) (cm) Notwithstanding sub. (1), patient health care records shall be released, upon request, to appropriate persons in accordance with s. 980.031 (4) and to authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney for use in the prosecution of any proceeding or any evaluation conducted under ch. 980, if the treatment records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning records made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

146.82(3) (3) Reports made without informed consent.

146.82(3)(a) (a) Notwithstanding sub. (1), a physician, a naturopathic doctor, a limited-scope naturopathic doctor, a physician assistant, or an advanced practice nurse prescriber certified under s. 441.16 (2) who treats a patient whose physical or mental condition in the physician’s, naturopathic doctor’s, limited-scope naturopathic doctor’s, physician assistant’s, or advanced practice nurse prescriber’s judgment affects the patient’s ability to exercise reasonable and ordinary control over a motor vehicle may report the patient’s name and other information relevant to the condition to the department of transportation without the informed consent of the patient.

146.82 Note NOTE: Par. (a) is shown as amended by 2021 Wis. Acts 23 and 130 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

146.82(3)(b) (b) Notwithstanding sub. (1), an optometrist who examines a patient whose vision in the optometrist’s judgment affects the patient’s ability to exercise reasonable and ordinary control over a motor vehicle may report the patient’s name and other information relevant to the condition to the department of transportation without the informed consent of the patient.

146.82(4) (4) Release of a portion of a record to certain persons.

146.82(4)(a) (a) In this subsection:

146.82(4)(a)1. 1. “Immediate family” has the meaning given in s. 350.01 (8m).

146.82(4)(a)2. 2. “Incapacitated” has the meaning given in s. 50.94 (1) (b).

146.82(4)(b) (b) Notwithstanding sub. (1), a health care provider may release a portion, but not a copy, of a patient health care record, to the following, under the following circumstances:

146.82(4)(b)1. 1. Any person, if the patient or a person authorized by the patient is not incapacitated, is physically available, and agrees to the release of that portion.

146.82(4)(b)2. 2. Any of the following, as applicable, if the patient and person authorized by the patient are incapacitated or are not physically available, or if an emergency makes it impracticable to obtain an agreement from the patient or from the person authorized by the patient, and if the health care provider determines, in the exercise of his or her professional judgment, that release of a portion of the patient health care record is in the best interest of the patient:

146.82(4)(b)2.a. a. A member of the patient’s immediate family, another relative of the patient, a close personal friend of the patient, or an individual identified by the patient, that portion that is directly relevant to the involvement by the member, relative, friend, or individual in the patient’s care.

146.82(4)(b)2.b. b. Any person, that portion that is necessary to identify, locate, or notify a member of the patient’s immediate family or another person that is responsible for the care of the patient concerning the patient’s location, general condition, or death.

146.82(4)(b)3. 3. A victim advocate, as defined in s. 50.378 (1) (a), who is accompanying a victim of sexual assault, human trafficking, or child sexual abuse under s. 50.378 (2).

146.82(5) (5) Redisclosure.

146.82(5)(a) (a) In this subsection, “covered entity” has the meaning given in 45 CFR 160.103.

146.82(5)(b) (b) Notwithstanding sub. (1) and except as provided in s. 610.70 (5), a covered entity may redisclose a patient health care record it receives under this section without consent by the patient or person authorized by the patient if the redisclosure of the patient health care record is a release permitted under this section.

146.82(5)(c) (c) Notwithstanding sub. (1), an entity that is not a covered entity may redisclose a patient health care record it receives under this section only under one of the following circumstances:

146.82(5)(c)1. 1. The patient or a person authorized by the patient provides informed consent for the redisclosure.

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.