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.
- Actual Cost
- Average Cost
- $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?
What an incredible waste of time and money. Wasn’t there any more important issues that the hospital had to deal with? Or for the attorneys to litigate?
This case is a clear one of attorneys not understanding the law.
Patient’s are entitled to a free copy of their own medical records.
However, the patient did the following: She authorized that the records be sent to her attorneys.
That was the attorney’s mistake.
If she had gotten the records herself, and turned them over to the attorneys herself, there would have been no fee. But because this was being sent to a third party, ie her attorneys, that got them into a fee situation.
Never underestimate the power of attorneys to not understand the rules under which they play.
At the med exec committee level I saw attorneys wildly misinterpret statutory law, and regulations and give absolutely nonsensical and non implementable interpretations.
When I and medical colleagues asked for and received copies of exactly what they were interpreting, and were asking us to implement as part of the bylaws, we saw that what they said, was exactly opposite of the plain reading of the law. We refused to implement the bylaws changes that the hospital corporate parent attorneys recommended. It went on for months, came back to us numerous times and we said NO loudly and clearly with appropriate motions and rejections each time. They finally gave up.
As to the stupidity of the patient…. what patient would spend more than the cost of the records on attorney’s fees to litigate this? The patient has no common sense.
Oh by the way, what exactly did the attorney’s want records for anyway? To sue for a bruise after an IV insertion? What other litigation came out from the medical records?
Also, if the courts had any brains and any balls, they would throw cases like this out, since at best it was a small claims court issue. They should have put a complete stop to this nonsense.
The patient did not win in this case. The hospital lost hundreds of thousands in legal fees, and their attorneys should have been ashamed to do that to the hospital.
The risk management team at the hospital insurer might have gotten involved at some point and forced them to settle or bowed out and told the hospital it was on its own.
But this is what passes for the legal system in the US these days. There is no justice, there is no clear delineation of right and wrong. There is just legal wrangling and everyone loses.
Every other patient that pays more in hospital fees, due to this insanity also loses.
The patient also lost a couple of years in litigation. Did she not have anything better to do?
I am so glad that I am retired!
My understanding was that anyone, including patients, could be charged a reasonable copying fee, not to exceed 75 cents per page, for a paper copy of their chart notes. The patient, or designated recipient, could not be denied a copy of their chart notes, even if they owed the office “x” amount of dollars, because the information contained therein belonged to that patient. Regarding an electronic form, there is no copying involved, so minimal fee, even to her specified third party.
$109.96, at a glance, looks much more than $110. It’s the nickel and diming that was the issue.
The hospital may have known the fee was unreasonable, but decided to throw the dice anyway. If they had won, then they legitimize a source of revenue. They may have not lost much financially if it was managed by in-house salaried attorneys
Maybe the patient was on a crusade to “protect” future patients. Asking one’s representatives for legislation change would had been a healthier avenue?