Health Law Update: Wisconsin Supreme Court Rules on Case Involving Fees for Production of Electronic Medical Records

How much can a health care provider charge a patient for production of their electronic health records in Wisconsin?

The Wisconsin Supreme Court recently answered this question in Banuelos v. University of Wisconsin Hospitals and Clinics Authority, 2023 WI 25 (April 4, 2023). In this case, the University of Wisconsin Hospitals and Clinics Authority (the “UW”) responded to a request from Ms. Banuelos to produce her electronic medical records. In response to the request, UW produced her electronic medical records, and sent her a bill for the sum of $109.96. The UW charged sums consistent with charges allowed under Wis. Stat. § 146.83(3f)(b). Banuelos filed a lawsuit seeking an injunction and damages. Her suit alleged that the statute does not specifically authorize a health care provider to charge for providing copies of electronic medical records.

The Supreme Court reviewed the case, and Justice Bradley authored a 4-3 opinion in favor of Ms. Banuelos. Justice Bradley started the analysis with Wis. Stat. § 146.83(3f), which provides the method for requesting medical records from a health care provider. A person requesting a copy of patient health care records must (1) request copies; (2) provide informed consent, and (3) pay the applicable fee set forth in Wis. Stat. § 146.83(3f)(b).

Wis. Stat. § 146.83(3f)(b) outlines the specific charges a health care provider may charge, which includes:

1. For all 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.
2. For microfiche or microfilm copies, $1.50 per page
3. For a print of an X-ray, $10 per image
4. If the requester is not the patient or a person authorized by the patient, for certification of copies, a single $8 charge.
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.
6. Actual shipping costs and any applicable taxes.

However, the statute does not identify any fee that a health care provider may charge for producing electronic copies. The majority opinion stated that there is “no provision in the text permitting the charge of fees for copies in formats which the legislature did not expressly authorize a fee.” In absence of a provision in the statute expressly authorizing a health care provider to charge a fee, the Court held that the provider may not charge a fee.

The majority opinion then analyzed the legislative history of Wis. Stat. § 146.83(3f) and found that the statute was amended as recently as 2009. In those amendments, the legislature took away the authority of the Wisconsin Department of Human Services to set fees for medical records, and in its place, specified the categories of fees currently found in Wis. Stat. § 146.83(3f). Justice Bradley further noted that the “Wisconsin statutes previously permitted a charge for the provision of electronic copies of patient health care records, that language has since been repealed.”

Conclusion

The Court ruled 4-3 in favor of Ms. Banuelos and found that although the statute 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. Health care providers should update their policies to reflect this change in Wisconsin law.