LRB-4315/1
SWB:amn
2017 - 2018 LEGISLATURE
February 9, 2018 - Introduced by Representative Murphy. Referred to Committee
on Health.
AB937,1,7 1An Act to renumber and amend 146.81 (5); to amend 102.13 (2) (b), 146.81
2(2) (f), 146.819 (2) (a), 146.819 (3) (a), 146.819 (3) (b), 146.82 (1), 146.82 (4) (b)
31., 146.82 (4) (b) 2. (intro.), 146.82 (5) (b), 146.82 (5) (c) 1., 146.83 (1b), 146.83
4(1c), 146.83 (1f) (am), 146.83 (1f) (cm), 146.83 (3), 146.83 (3f) (b) 1., 2., 3., 4., 5.
5and 6. and 146.83 (3f) (c) 2.; and to create 146.81 (5) (c), 146.81 (5) (d), 146.81
6(5) (f), 146.81 (5) (g), 146.813, 146.83 (3f) (b) 1m. and 146.83 (3f) (b) 3m. of the
7statutes; relating to: access to and release of patient health care records.
Analysis by the Legislative Reference Bureau
This bill makes various changes to statutes regarding access to and release of
patient health care records.
The bill substitutes the term “representative of the patient" for the term
“person authorized by the patient" throughout the statutes related to confidentiality
of and access to health care records. The bill also changes the definition such that
a “representative of the patient" is any of the following: the parent or guardian or
legal custodian of a patient who is a minor; the person vested with supervision of a
patient who is a child under certain state laws; a person who has legal authority to
act on behalf of an adult patient in making decisions related to health care; the
personal representative, or special administrator, who has the authority to act on
behalf of a deceased patient or a deceased patient's estate; a health care agent

designated by an adult patient as a principal under a power of attorney for health
care instrument if the patient has been found to be incapacitated except as limited
in that instrument; a temporary guardian appointed for a patient; or an individual
who is treated as a personal representative under the federal privacy rule associated
with the Health Insurance Portability and Accountability Act of 1996. The federal
privacy rule associated with HIPAA specifies that a personal representative is a
person who has authority to act on behalf of an adult or an emancipated minor in
making health care decisions; a parent, guardian, or other person acting in loco
parentis who has authority to act on behalf of an unemancipated minor in making
health care decisions under certain circumstances specified in the rule; or an
executor, administrator, or other person who has authority to act on behalf of a
deceased individual or the deceased individual's estate.
Current state law allows that a patient or person authorized by the patient may,
among other things, authorize release of the patient's health care records to others,
inspect the patient's health care records, obtain copies of the patient's health care
records for a reduced fee if the patient is eligible for Medical Assistance, and obtain
copies of the patient's health care records without paying a certification fee or a
retrieval fee. A representative of the patient retains that authority under this bill.
Under the bill, a health care provider is allowed to elect not to consider a person
as a representative of the patient under circumstances similar to the federal privacy
rule associated with HIPAA. A health care provider, in its discretion, may elect not
to consider a person a representative of the patient if 1) the patient has been or may
be subjected to domestic violence, abuse, or neglect by the person or 2) considering
the person as a representative of the patient could endanger the patient and, in the
exercise of the health care provider's professional judgment, it is not in the best
interest of the patient to consider that person a representative of the patient.
This bill also changes the fees allowed for obtaining copies of health records to
include fees relating to electronic records and electronic delivery of health records.
Among other things, the bill establishes a maximum per page charge of $300 per
record, plus applicable taxes, for electronic copies secured from a medical provider's
electronic health record and delivered via electronic mail or secure Internet portal.
Finally, the bill changes the fee structure for reproduction fees for medical
records requested in worker's compensation matters, applying the same fee
structure used for reproduction of medical records in other contexts in place of the
special fee structure for worker's compensation matters that exists under current
law.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB937,1 1Section 1. 102.13 (2) (b) of the statutes is amended to read:
AB937,3,102 102.13 (2) (b) A physician, chiropractor, podiatrist, psychologist, dentist,
3physician assistant, advanced practice nurse prescriber, hospital, or health service

1provider shall furnish a legible, certified duplicate of the written material requested
2under par. (a) in paper format upon payment of the actual costs of preparing the
3certified duplicate, not to exceed the greater of 45 cents per page or $7.50 per request,
4plus the actual costs of postage, or shall furnish a legible, certified duplicate of that
5material in electronic format upon payment of $26 per request
fees established under
6s. 146.83 (3f) (b)
. Any person who refuses to provide certified duplicates of written
7material in the person's custody that is requested under par. (a) shall be liable for
8reasonable and necessary costs and, notwithstanding s. 814.04 (1), reasonable
9attorney fees incurred in enforcing the requester's right to the duplicates under par.
10(a).
AB937,2 11Section 2. 146.81 (2) (f) of the statutes is amended to read:
AB937,3,1512 146.81 (2) (f) The signature of the patient or the person authorized by
13representative of the patient and, if signed by a person authorized by representative
14of
the patient, the relationship of that person representative to the patient or the
15authority of the person representative.
AB937,3 16Section 3. 146.81 (5) of the statutes is renumbered 146.81 (5) (intro.) and
17amended to read:
AB937,3,1918 146.81 (5) (intro.) “Person authorized by Representative of the patient" means
19the any of the following:
AB937,3,21 20(a) The parent, or guardian, or legal custodian of a minor patient, as defined
21in s. 48.02 (8) and (11), the of a patient who is a minor.
AB937,4,2 22(b) The person vested with supervision of the a patient who is a child under s.
23938.183 or 938.34 (4d), (4h), (4m), or (4n), the guardian of a patient adjudicated
24incompetent in this state, the personal representative, spouse, or domestic partner

1under ch. 770 of a deceased patient, any person authorized in writing by the patient
2or a
.
AB937,4,11 3(e) A health care agent designated by the an adult patient as a principal under
4ch. 155 if the patient has been found to be incapacitated under s. 155.05 (2), except
5as limited by the power of attorney for health care instrument. If no spouse or
6domestic partner survives a deceased patient, “person authorized by the patient"
7also means an adult member of the deceased patient's immediate family, as defined
8in s. 632.895 (1) (d). A court may appoint a temporary guardian for a patient believed
9incompetent to consent to the release of records under this section as the person
10authorized by the patient to decide upon the release of records, if no guardian has
11been appointed for the patient.
AB937,4 12Section 4. 146.81 (5) (c) of the statutes is created to read:
AB937,4,1413 146.81 (5) (c) A person who has legal authority to act on behalf of an adult
14patient in making decisions related to health care.
AB937,5 15Section 5. 146.81 (5) (d) of the statutes is created to read:
AB937,4,1716 146.81 (5) (d) The personal representative, or special administrator, who has
17the authority to act on behalf of a deceased patient or a deceased patient's estate.
AB937,6 18Section 6. 146.81 (5) (f) of the statutes is created to read:
AB937,4,2019 146.81 (5) (f) A temporary guardian appointed for a patient as described in s.
20146.813 (1).
AB937,7 21Section 7. 146.81 (5) (g) of the statutes is created to read:
AB937,4,2322 146.81 (5) (g) An individual who is treated as a personal representative under
2345 CFR 164.502 (g).
AB937,8 24Section 8. 146.813 of the statutes is created to read:
AB937,5,5
1146.813 Representatives of the patient. (1) Temporary guardian. A court
2may appoint a temporary guardian for a patient who is believed to be incompetent
3to consent to the release of records under s. 146.82 as the representative of the
4patient for the purpose of deciding upon the release of records, if no guardian has
5been appointed for the patient.
AB937,5,10 6(2) Exception to representatives of the patient. Notwithstanding s. 146.81
7(5), a health care provider, in its discretion, may elect not to consider a person who
8would otherwise be a representative of the patient by definition as a representative
9of the patient if the health care provider believes any of the following circumstances
10exist:
AB937,5,1211 (a) The patient has been or may be subjected to domestic violence, abuse, or
12neglect by the person who meets the definition under s. 146.81 (5).
AB937,5,1613 (b) Considering the person who meets the definition under s. 146.81 (5) as a
14representative of the patient could endanger the patient and, in the exercise of the
15health care provider's professional judgment, it is not in the best interest of the
16patient to consider that person a representative of the patient.
AB937,9 17Section 9. 146.819 (2) (a) of the statutes is amended to read:
AB937,5,2118 146.819 (2) (a) Provide written notice, by 1st class mail, to each patient or
19person authorized by representative of the patient whose records will be maintained,
20at the last-known address of the patient or person representative, describing where
21and by whom the records shall be maintained.
AB937,10 22Section 10. 146.819 (3) (a) of the statutes is amended to read:
AB937,6,823 146.819 (3) (a) Provide notice to each patient or person authorized by
24representative of the patient whose records will be deleted or destroyed, that the
25records pertaining to the patient will be deleted or destroyed. The notice shall be

1provided at least 35 days prior to deleting or destroying the records, shall be in
2writing and shall be sent, by 1st class mail, to the last-known address of the patient
3to whom the records pertain or the last-known address of the person authorized by
4representative of the patient. The notice shall inform the patient or person
5authorized by
representative of the patient of the date on which the records will be
6deleted or destroyed, unless the patient or person representative retrieves them
7before that date, and the location where, and the dates and times when, the records
8may be retrieved by the patient or person representative.
AB937,11 9Section 11. 146.819 (3) (b) of the statutes is amended to read:
AB937,6,1510 146.819 (3) (b) Publish, under ch. 985, a class 3 notice in a newspaper that is
11published in the county in which the health care provider's or decedent's health care
12practice was located, specifying the date on which the records will be deleted or
13destroyed, unless the patient or person authorized by representative of the patient
14retrieves them before that date, and the location where, and the dates and times
15when, the records may be retrieved by the patient or person representative.
AB937,12 16Section 12. 146.82 (1) of the statutes is amended to read:
AB937,6,2517 146.82 (1) Confidentiality. All patient health care records shall remain
18confidential. Patient health care records may be released only to the persons
19designated in this section or to other persons with the informed consent of the patient
20or of a person authorized by representative of the patient. This subsection does not
21prohibit reports made in compliance with s. 253.12 (2), 255.40, or 979.01; records
22generated and disclosed to the controlled substances board pursuant to s. 961.385;
23testimony authorized under s. 905.04 (4) (h); or releases made for purposes of health
24care operations, as defined in 45 CFR 164.501, and as authorized under 45 CFR 164,
25subpart E.
AB937,13
1Section 13. 146.82 (4) (b) 1. of the statutes is amended to read:
AB937,7,42 146.82 (4) (b) 1. Any person, if the patient or a person authorized by
3representative of the patient is not incapacitated, is physically available, and agrees
4to the release of that portion.
AB937,14 5Section 14. 146.82 (4) (b) 2. (intro.) of the statutes is amended to read:
AB937,7,126 146.82 (4) (b) 2. (intro.) Any of the following, as applicable, if the patient and
7person authorized by representative of the patient are incapacitated or are not
8physically available, or if an emergency makes it impracticable to obtain an
9agreement from the patient or from the person authorized by representative of the
10patient, and if the health care provider determines, in the exercise of his or her
11professional judgment, that release of a portion of the patient health care record is
12in the best interest of the patient:
AB937,15 13Section 15. 146.82 (5) (b) of the statutes is amended to read:
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