July 8, 2009 – The new 2009-11 biennial state budget (2009 Wisconsin Act 28), which Gov. Jim Doyle signed into law on June 29, significantly modifies state laws regarding patient access to and fees charged for copies of patient health care records. Although Gov. Doyle vetoed some provisions passed by the Legislature, many of the changes survived his veto pen intact.
Prior to the enactment of the new budget on June 29, Wisconsin law required the Department of Health Services (DHS) to promulgate rules (HFS 117) to prescribe fees for patient health care records. State law also provided that the fees established under HFS 117 were the maximum amount a health care provider could charge for duplicate patient health care records, duplicate X-ray reports, or the referral of X-rays to another health care provider of the patient's choice. Act 28 generally repeals these provisions in favor of a statutorily-set fee schedule, along with other changes described below.
Generally, the changes in Act 28 are effective as of June 30, 2009.
Definitions
As a preliminary matter, section 2429e of Act 28 expands the definition in sec. 146.81(4) of "health care provider," as it relates to patient health care records, to include ambulance service providers, emergency medical technicians, and first responders. The act also specifies that "patient health care records" includes all records made by an ambulance service provider, an emergency medical technician, or a first responder in administering emergency care procedures to, and handling and transporting sick, disabled, or injured individuals. The act further provides that "patient health care records" include billing statements and invoices for treatment or services provided by a health care provider, and include health summary forms.
Elimination of establishment of fees by administrative rule
Act 28 generally repeals state law that required DHS, by rule (HFS 117), to prescribe fees for patient health care records, based on an approximation of actual costs. Prior to the enactment of Act 28, state law required DHS, by January 1, 2006, and every three years thereafter, to revise HFS 117 to account for increases or decreases in actual costs.
Rather than promulgating medical record fees by rule, under Act 28 these fees are instead now established by statute, as described below.
Statutory fee schedule – fees charged to a patient or a person authorized by the patient
Section 2433d of Act 28 creates sec. 146.83(1f), which provides that if a patient or a person authorized by the patient requests copies of the patient's health care records, the health care provider may charge no more than the following fees:
(a) for paper copies, a charge of 35 cents per page;
(b) for microfiche or microfilm copies, $1.25 per page;
(c) for a print of an X-ray, $10 per image;
(d) actual shipping costs; and
(e) if the patient or person authorized by the patient requests delivery of the copies within seven or fewer days after making a request for copies, and the health care provider delivers the copies within that time, a fee equal to 10 percent of the total fees that may be charged as described above may be added.
Under the new law, if a patient or person authorized by the patient requests copies of the patient's health care records for use in appealing a denial of social security disability insurance or supplemental security income, the health care provider may charge no more than the amount that the federal Social Security Administration reimburses DHS for copies of patient health care records.
The new law also provides that a health care provider may not charge a fee for providing one set of copies of a patient's health care records if the patient is eligible for medical assistance. The revised law also specifies that 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 without charge. Act 28 also allows a health care provider to charge any applicable fees for providing a second or additional set of copies of patient health care records for a patient who is eligible for medical assistance.
Statutory fee schedule – fees charged to a person other than the patient or authorized representative
Section 2433e of Act 28 creates sec. 146.83(1g), which provides that if a person other than a patient (or a person authorized by the patient) requests copies of a patient’s health care records, provides informed consent, and pays the applicable fees, the health care provider shall provide the person making the request copies of the requested records. However, a health care provider may charge no more than the following in such circumstances:
(a) for paper copies, 35 cents per page;
(b) for microfiche or microfilm copies, $1.25 per page;
(c) for a print of an X−ray, $10 per image;
(d) for certification of copies, $5;
(e) for processing and handling, a single $15 charge for all copies requested;
(f) actual shipping costs; and
(g) if the person other than the patient or other than a person authorized by the patient requests delivery of the copies within seven or fewer days after making a request for copies, and the health care provider delivers the copies within that time, a fee equal to 10 percent of the total fees that may be added.
As with record requests directly from the patient, if DHS requests copies of a patient's health care records in determining eligibility for social security disability insurance, or supplemental security income, the health care provider may charge no more than the amount that the federal Social Security Administration reimburses for copies of patient health care records.
Provision of record in an electronic format
Section 2433h of Act 28 creates sec. 146.83(1k), which provides that upon the request of the person requesting copies of patient health care records, the health care provider shall provide the copies in a digital or electronic format unless the health care provider’s record system does not provide for the creation or transmission of records in a digital or electronic format, in which case the health care provider shall provide the person a written explanation for why the copies cannot be provided in a digital or electronic format. The act also allows the health care provider to include this written explanation with the production of paper copies of the records if the patient chooses to receive paper copies.
Patient health care records – statutes related to evidence
Section 3285gc of Act 28 includes all health care providers listed in the definition of health care provider under sec. 146.81(1) of the statutes in the definition of "health care provider" under sec. 908.03(6m) of the evidence code. Act 28 also changes references in Chapter 908 from "health care provider records" to "patient health care records."
In addition, section 3285gi and 3285gk of Act 28 amend sec. 908.03(6m)(c) to specify that such records are subject to subpoena if upon a properly authorized request of an attorney, the health care provider refuses, fails, or neglects to supply within two business days a legible certified duplicate of its records for the fees established by statute.
Section 3285gh of Act 28 also provides, in the statutes relating to evidence and patient health care records, that any billing statement or invoice that is included in patient health care records under s. 146.81(1) and s. 146.81(4) of the statutes is presumed to be the reasonable value of health care services provided, and the health care services provided are presumed to be reasonable and necessary to the care of the patient. Generally, this is a codification of the current collateral source rule set forth in Leitinger v. Van Buren Management, 2007 WI 84, which states that a tortfeasor cannot introduce evidence of the amount actually paid by collateral sources, such as reimbursement by a victim’s health insurance company for medical treatment, in order to prove the reasonable value of the medical treatment. (The State Bar supports the collateral source rule, which bars reduction of awards by payments from collateral sources that do not have subrogation rights.) The budget creates sec. 908.03 (6m) (bm), which creates a presumption that “Billing statements or invoices that are patient health care records are presumed to state the reasonable value of the health care services provided and the health care services provided are presumed to be reasonable and necessary to the care of the patient. Any party attempting to rebut the presumption of the reasonable value of the health care services provided may not present evidence of payments made or benefits conferred by collateral sources.”
Vetoed provisions
In his veto message on June 29, Gov. Doyle lists several vetoed provisions not described above.
As originally passed by the Legislature, the budget would have required health care providers to provide a patient or a person authorized by a patient (as defined in current law) access to, or copies of, patient health care records as follows: (a) allow inspection of the records within 21 days of receiving a request; (b) provide copies of the records (excluding X-rays and X-ray reports) within 21 days after receiving a request; and (c) provide copies of X-rays, and X-ray reports within 30 days after receiving a request. Health care providers who did not comply with these requirements would have been subject to a forfeiture of $100, plus $10 for each day that the provider did not comply with these requirements.
The governor's partial veto deletes the requirement that a health care provider must allow inspection of patient health care records or provide copies of patient health care records (excluding X-rays and X-ray reports) within 21 days of a request. The partial veto also deletes the provision that subjects health care providers to a forfeiture if he or she does not provide access to patient health care records within 21 days or a request, provide copies of patient health care records within 21 days of a request, or provide copies of X-rays or X-ray reports within 30 days of the request.
In explaining this veto, the governor stated in his veto message, “I am partially vetoing this provision to eliminate the deadlines and the associated penalties for providing copies of and access to records, with the intent of maintaining current law requirements provided under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). The impact on health care providers of creating state regulations that are significantly more restrictive than federal requirements has not been adequately analyzed.”
As passed by the Legislature, the budget also would have allowed health care providers to charge a single fee of up to $5 for all copies of patient health care records provided in digital or electronic format. In addition, the enrolled bill would have prohibited a health care provider from charging a fee for the disc or other storage medium on which copies are provided in a digital or electronic format.
The governor's partial veto deletes the maximum single charge of $5 for copies provided in an electronic format, specifying that a health care provider may assess a charge for all copies provided in digital or electronic format. The partial veto also deletes the prohibition on charging a fee for the disc or other storage medium on which copies are provided in a digital or electronic format.
Regarding this veto, the governor stated in his veto message, “. . . this partial veto will eliminate the $5 fee limit on electronic record copies with the intent that providers may charge a reasonable fee rate for providing copies in an electronic or digital format that is no more than the paper copy rate. The fee limitation is a deterrent to providers adopting electronic health records.”
In relation to this veto, the governor also directs the DHS, in collaboration with the Wisconsin eHealth Care Quality and Patient Safety Board, to evaluate alternatives and to make recommendations on appropriate fees and effective penalties to ensure appropriate and timely access to records that can be adopted in future legislation.
Relevant Act 28 sections: 2429e, 2433b, 2433d, 2433f, 2433h, 2433p, 3285gc, 3285gh, 3285gi, 3285gk, and 9322.
Adam Korbitz is the Government Relations Ccordinator for the State Bar of Wisconsin.
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