Dec. 7, 2015 – Personal injury attorneys who order a client’s health care records with the client’s permission are not exempt from paying certification and retrieval fees under the health-records-fee statute, a state appeals court has ruled, reversing a lower court.

Wis. Stat. section 146.83(3f), the health-records-fee statute, imposes an $8 “certification of copies” charge and a $20 “retrieval fee” on health record requestors who are not the patient or a “person authorized by the patient,” in addition to other charges.

In 2011, Carolyn Moya signed a HIPAA form that authorized the release of her medical records to Welcenbach Law Offices, retained to handle Moya’s personal injury case.

The law firm sent a medical records request to Aurora Healthcare Inc., which contracts with Healthport Technologies LLC to handle medical record requests. Healthport sent the medical records, along with an invoice for the $8 certification and $20 retrieval fees.

The law firm paid the fees. But in 2013, Welcenbach Law Offices (on behalf of Moya) filed a class action lawsuit, alleging Moya’s personal injury attorney was a “person authorized by the patient” to request the records and therefore exempt from those fees.

Healthport argued that a “person authorized by the patient” means someone who is authorized to “release” the records to others, not simply to obtain and view them.

The Milwaukee County Circuit Court ruled that the fees are exempt for persons with consent to release the records, but also for those with authority to inspect them.

In Moya v. Aurora Healthcare Inc., 2014AP2236 (Dec. 1, 2015), a three-judge panel for the District I Court of Appeals reversed that decision (2-1), concluding that section 146.83(3f) does not exempt a personal injury attorney with authority to inspect records.

The majority noted that section 146.81(5) specifically defines a “person authorized by the patient,” and personal injury attorneys with HIPAA authorization are not on the list.

“If the legislature intended to include attorneys who obtain clients’ medical records in civil litigation, it certainly could have added attorneys to the list set forth in Wis. Stat. § 146.81(5). It did not,” wrote Reserve Judge Daniel LaRocque.

The majority said that a “person authorized by the patient” is a person with more authority than attorneys have under HIPAA releases.

The majority also noted that in 2014 the legislature created section 146.83(1b), which says “persons authorized by the patient” include state public defenders or other attorneys who are appointed to represent the patient because of indigency.

This provision supports the argument that other attorneys are not “persons authorized by the patient,” the majority explained, otherwise the legislature would have said so.

Finally, the majority rejected Moya’s argument that her attorney was simply making the records request on her behalf, and she would be exempt from the fees that were ultimately charged to her if she personally requested the records for herself.

“It is not this court’s job to decide whether the legislature should also exempt personal injury attorneys from paying certification and retrieval fees,” LaRocque wrote. “It is our job to apply the plain language of the statute within the context of the statutory scheme.”  

Dissent

Judge Joan Kessler dissented. She said the majority ignored the plain language of the statutes and added an exclusion that the legislature did not create.

“The effect of this leap of logic is a drastic limitation on the right of a competent adult patient to give informed consent to ‘any person’ of the patient’s choosing (here, the patient’s attorney) to obtain copies of the patient’s health care records at a statutorily provided reduced cost to the patient,” Judge Kessler wrote.

She noted that the statute, section 146.81(5), says “persons authorized by the patient” specifically include “any person authorized in writing by the patient.”

“Here, there is no dispute that the patient signed a written consent that complied with statutory requirements, and authorized her attorney to obtain the records identified on the consent,” Judge Kessler wrote.

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Need Medical Records for Your Case? Get Them Quicker, at Lower Rates – WisBar InsideTrack (Oct. 21, 2015)

Law Firm Not Subject to State Tax on Photocopies of Medical Records – WisBar News (Oct. 15, 2015)