May 9, 2017 – An attorney with written authorization to obtain a client’s medical records for a case is exempt from paying certain fees that may apply to medical record requests, the state supreme court has ruled.

In 2015, a state appeals court ruled that a personal injury attorney seeking a client’s medical records is subject to an $8 “certification of copies” fee and a “retrieval fee” of $20, despite have written authorization from the client to request the records.

But in Moya v. Aurora Healthcare Inc., 2017 WI 45 (May 4, 2017), the Wisconsin Supreme Court held (4-1) “that an attorney authorized by his or her client in writing via a HIPAA release form to obtain the client’s health care records” is exempt from the fees.

The majority rejected the view that fee exemptions only apply to those people with powers to make health care-related decisions on behalf of a patient, and rejected the argument that the voluntary payment or waiver doctrines bar the claims at issue.

Justice Annette Ziegler dissented, concluding the statute is meaningless without limitation. Justices Rebecca Bradley and Daniel Kelly did not participate.

Medical Record Fees

Carolyn Moya filed a class action lawsuit after Aurora Healthcare Inc., through medical records administrator Healthport Technologies LLC (Healthport), billed her lawyer for certification and retrieval fees pertaining to the lawyer’s medical records request.

Moya was involved in a car accident. She hired Welcenbach Law Offices to represent her. Attorney Robert Welcenbach obtained a written HIPAA authorization to obtain Moya’s medical records, and sent the medical records request to Healthport.

Wis. Stat. section 146.83(3f) allows health care providers to charge copy fees for health record requests, capped at certain amounts depending on the number of pages.

Additional “certification” and “retrieval” fees apply if the person requesting the medical records is not the patient or a “person authorized by the patient.”

Section 146.81(5) enumerates “person[s] authorized by the patient,” including parents or guardians of minor patients, the personal representative or spouse of a deceased patient, and “any person authorized in writing by the patient or a health care agent designated by the patient as a principal … if the patient has been found to be incapacitated … except as limited by the power of attorney for healthcare instrument.”

Healthport imposed the “certification” and “retrieval” fees on attorney Welcenbach’s record request. He did not dispute the fees at the time, but had previously disputed such charges in other cases. Moya ultimately paid the fees when her case settled.

Moya then filed a class action lawsuit, arguing that Healthport violated the health-records-fee statute, section 146.83(3f), by imposing fees on attorneys when they are “authorized by the patient” to request the medical records.

The circuit court denied Healthport’s motion for summary judgment, but Healthport won its appeal. A three-judge panel (2-1) ruled that attorneys are not exempt from fees.

Authorized by the Patient

On appeal to the supreme court, the question remained: Are attorneys requesting medical records on behalf of clients exempt from the certification and retrieval fees?

Under section 146.81(5), a “person authorized by the patient” includes “any person authorized in writing by the patient. …” Moya argued that under a plain meaning of this provision, attorneys clearly fall within the exemption if they have written authorization.

On the other hand, Healthport argued that “persons authorized by the patient” must be authorized to make health care decisions for the patient because the phrase precedes language related to health care agents designated in the event of incapacitation.

The majority did not agree. “The statutory language is unambiguous in that it requires only a person with a written authorization from the patient,” wrote Justice Michael Gableman. “The plain meaning of the statute does not require that the authorization be an authorization to make health care decisions on behalf of the patient.”

The majority viewed “any person authorized in writing by the patient” as a distinct category of people that are exempt from certification and retrieval fees.

Voluntary Payment Doctrine / Waiver

Under the voluntary payment doctrine, a party cannot challenge the legality of a payment obligation unless the party makes the challenge before paying the bill.

Healthport argued that under the voluntary payment doctrine, Moya lost the right to challenge the fees because her attorney paid the fees before Moya challenged them.

The majority ruled that application of the common law voluntary payment doctrine would undermine the purpose of the health-records-fee statute.

Healthport also argued that Moya waived her right to exemption under the health-records-fee statute because she did not request the records herself.

“To conclude that the doctrine of waiver applies would require us to conclude that Moya’s attorney has to pay the certification charge and retrieval fee,” wrote Justice Gableman. “However, we conclude that Moya’s attorney does not have to pay the certification charge or retrieval fee because he is a person ‘authorized by the patient.’”

Ziegler Dissents

Justice Ziegler dissented, concluding the appeals court correctly decided that a “person authorized by the patient” must be someone with power to consent to release them.

“These lawyers do not fall into the class of persons listed in § 146.81(5) as they are not otherwise legally poised to essentially become the decision-maker for the patient when the patient cannot legally act on his or her behalf,” Justice Ziegler wrote.

Ziegler said the commonality of people exempt from paying certification and retrieval fees is that they can “legally act and make decisions when the patient cannot. …” Lawyers, she said, advocate for clients but are subject to the client’s direction.

“The categories of individuals in Wis. Stat. § 146.81(5), on the other hand, are composed of individuals who stand in the shoes of a patient and make decisions for the patient, but are not those who simply advocate for a client at the client’s direction.”

She noted that under the majority’s interpretation, “virtually no one will ever pay certification or retrieval fees as called for by the statute” if they have written authorization from the patient to request the medical records.

“If the statute at issue is really as broad as the court says it is, the challenged fee requirements are rendered largely meaningless,” Justice Ziegler wrote.