Banuelos v. University of Wisconsin Hospitals and Clinics…, 406 Wis.2d 439 (2023) is best explained by the truism that lawyers have children in college. And tuition plus room and board is expensive.

The bills will get paid.

Beatriz Banuelos requested her medical records from University of Wisconsin Hospital. She submitted a signed request and asked for copies of her medical records in electronic format (pursuant to the HITECH Act). She authorized that the records be sent to her attorneys.

The Hospital complied with the request through its service provider, Ciox. Banuelos’ attorneys received the electronic copy.

And an invoice for $109.96.

The requested payment for copies included “per page” charges of $1.14 for the first 25 pages, $0.86 for the next 25 pages, $0.56 for the next 50 pages, and $0.34 for an additional 94 pages, which is consistent with the maximum rate for paper copies of patient health care records permitted under Wis. Stat. § 146.83(3f).

This invoice did not sit well with Banuelos’ attorneys.

Banuelos filed suit, seeking declaratory and injunctive relief, as well as damages. Her complaint alleged that because the copies of electronic patient health care records she requested do not fall into one of the enumerated categories contained within Wis. Stat. § 146.83(3f), none of the charges permitted under § 146.83(3f) applies to her electronic records request. Accordingly, she argued that UW Hospital’s charge of $109.96 was in violation of state law.

The Hospital filed a Motion to Dismiss alleging Banuelos’ claims were “fundamentally flawed” with respect to her interpretation of the Wisconsin statute.

The Hospital prevailed at the lower level.

The case was appealed and reversed.

Then, the Hospital appealed to the Wisconsin Supreme Court. Damn it. It was going to collect the $109.96.

The Hospital argued that the Wisconsin statute discussed what maximum charges could be for paper records, microfiche, X-rays, with additional charges if records were being requested by someone other than the patient or individual authorized by the patient. The Hospital argued that the statute was mute on electronic records. And the sky was the limit. Or at least a reasonable fee was the limit.

This was a cage fight with amicus curiae briefs filed for Aurora Health Care, Inc., Wisconsin Civil Justice Council, Inc., Wisconsin Association for Justice and Wisconsin Defense Counsel, the Wisconsin Medical Society, Inc., the Wisconsin Dental Association, Inc., LeadingAge Wisconsin, Inc., the Rural Wisconsin Health Cooperative, the Wisconsin Health Care Association/Wisconsin Center for Assisted Living, and the Wisconsin Health Information Management Association, Inc., and Association of Health Information Outsourcing Services.

The interested parties put their muscle behind the effort. The stakes could not be higher.

The Wisconsin Supreme Court affirmed the appellate decision. Banuelos won. Or more accurately, her attorneys, the individuals who wanted the records, won.

We conclude that although Wis. Stat. § 146.83(3f) 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. Therefore, we determine that Banuelos’s complaint states a claim upon which relief can be granted.

The federal HITECH Act also addresses charges for electronic medical records.

Under the HITECH Act, the fee that any covered entity may impose for providing a copy of electronic health records “shall not be greater than the entity’s labor costs” in responding to the request. 42 U.S.C. § 17935(e)(2). The regulations make clear that the costs are limited to labor, the cost of supplies, and postage. See 45 C.F.R. 164.524(c)(4)(i)-(iii). The US Department of Health & Human Services permit you to charge $6.50 as a flat rate or calculate the average or actual cost for provided these electronic records, whichever is most appropriate for the circumstances. However, the fees charged must be “withing the boundaries of what is permissible under the Privacy Rule.” See https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/clarification-flat-rate-copy-fee/index.html.

The federal government notes three ways to determine charges for electronic records.

1. Actual Cost
2. Average Cost
3. $6.50 flat rate.

If “actual cost”, you will need to back up that number. How? Who compiled the records? How much time was spent on compiling the records? How much is that individual paid to perform their job?

If this cost is based on the average cost, you will need to back up that number. That number is likely the actual cost amortized over a year for similar requests.  

Of course, you can just charge the $6.50 flat fee. No calculations required.

Clearly, reproduction of electronic medical records is not going to be a revenue center.

Still, you can see that the issue of paying for electronic medical records triggers strong feelings.

I have no idea what the parties paid to litigate this issue to the Wisconsin Supreme Court. But it had to be steep.

As we have written before, some fights achieve momentum well beyond the stakes at play.

Remember the Falklands War. Argentine author Jorge Luis Borges, had his interpretation: “The Falklands thing was a fight between two bald men over a comb.” One journalist added, “The British still want the comb, if only to hand it over nicely.”

The Falklands War (Spanish: Guerra de las Malvinas) was a ten-week undeclared war between Argentina and the United Kingdom in 1982 over two British dependent territories in the South Atlantic: the Falkland Islands and its territorial dependency, South Georgia and the South Sandwich Islands. The conflict began on 2 April, when Argentina invaded and occupied the Falkland Islands, followed by the invasion of South Georgia the next day. On 5 April, the British government dispatched a naval task force to engage the Argentine Navy and Air Force before making an amphibious assault on the islands. The conflict lasted 74 days and ended with an Argentine surrender on 14 June, returning the islands to British control. In total, 649 Argentine military personnel, 255 British military personnel, and three Falkland Islanders were killed during the hostilities.

The population of the Falkland Islands today is 3,794. That said, there are about half a million sheep there.

This fight over invoices for copying electronic medical records seemed liked a fight between two bald men over a comb.

If I were to bet on the future, I expect the Wisconsin legislature to clarify the issue, and it will likely comport to what HITECH offers. But we’ll see.

What do you think?

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Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

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Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

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