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)(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 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
This section permits a health care provider to charge for providing requested copies of patient health care records only those fees enumerated in sub. (3f) that apply to the request. In this case, fees that the provider charged the requester were unlawful under sub. (3f) because the requester requested and received copies in an electronic format, and there are no statutorily enumerated fees for electronic copies. Sub. (3f) (b) defines the total universe of fees that a provider may collect from a requester for the service of fulfilling a request for patient health care records under sub. (3f) (a). Banuelos v. University of Wisconsin Hospitals & Clinics Authority,
2021 WI App 70,
399 Wis. 2d 568,
966 N.W.2d 78,
20-1582.
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.
146.835
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.
146.84
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)(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)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)(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 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 165,
960 N.W.2d 442,
20-2081.
146.84 Annotation
In this case, the plaintiff business trade associations contended that the legally protectable interests shared by their member businesses was that the member businesses were “persons" that could sue for damages under sub. (1) (b) and (bm) based on purported violations of the rights of the employees of the member businesses to the confidentiality of the employees' health care records under s. 146.82 or 146.83. However, the alleged harm to the reputations of the businesses could not constitute an injury contemplated by these statutes because the statutes are focused on individual patients and their health care records. There is an obvious disconnect between any purported rights of the businesses and the protected rights of individual employees of the businesses. Wisconsin Manufacturers & Commerce v. Evers,
2021 WI App 35,
398 Wis. 2d 165,
960 N.W.2d 442,
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.
146.87
146.87
Federal registration numbers for prescribers of controlled substances. 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(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)(d)
(d) “Governing body" means the governing body of any of the following:
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 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: Subd. 1. 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). 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.
Effective date note
NOTE: Subd. 4. is shown as amended eff. 1-1-23 by
2021 Wis. Act 100. Prior to 1-1-23 it reads:
Effective date text
4. An individual who performs functions described for pharmacy technicians in rules promulgated by the pharmacy examining board.
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 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)7.
7. A marriage and family therapist who is licensed under ch.
457 or a professional counselor who is licensed under ch.
457.
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)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.
