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High court to hear arguments over health-records fees

Milwaukee personal-injury attorney Robert Welcenbach, of Welcenbach Law Offices, is preparing for oral arguments before the state Supreme Court. He has been arguing that state law prevents health care companies from charging attorneys certain fees for medical records. (Staff photo by Kevin Harnack)

Milwaukee personal-injury attorney Robert Welcenbach, of Welcenbach Law Offices, is preparing for oral arguments before the state Supreme Court. He has been arguing that state law prevents health care companies from charging attorneys certain fees for medical records. (Staff photo by Kevin Harnack)

The Wisconsin Supreme Court is about to find itself in the midst of pitched battle between health care providers and personal-injury attorneys over fees charged for access to medical records.

At the heart of the dispute is language found in Wisconsin’s health-records statutes. Those statutes explicitly exempt patients and “persons authorized by the patient” from having to pay the $20 retrieval fees and the $8 certification fees that most people must cough up to see medical records.

Even though one provision, Wis. Stat. 146.81(5), is meant to define exactly what is implied by “persons authorized by the patient,” ambiguities remain. Particularly unclear is whether lawyers must still pay even after they’ve obtained their clients’ written permission to view medical records.

Because the amounts charged for access to medical records can add up quickly, questions over who should be exempted are of great weight to personal-injury lawyers. The dispute also matters to clients, who are often the ones who ultimately bear the cost, said Robert Welcenbach, a personal-injury lawyer and a litigator in the case before the Supreme Court.

“We think the plain language is clear, and it means what it says,” he said.

Welcenbach said Wisconsin’s medical-records statutes have long been in need of clarification. His firm, Milwaukee-based Welcenbach Law Offices, now racks up somewhere between $500 and $1,000 in certification and retrieval fees each month, he said.

And it’s not just personal-injury lawyers and their clients who are footing the bill. Fees charged for medical records fall on attorneys in other areas of the law, including criminal defense, he said.

Often, Welcenbach said, lawyers are seeking certified records for use in court. He cited one of his own cases as an example.

In 2011, Carolyn Moya, of Milwaukee, hired Welcenbach’s firm to help her pursue an injury claim arising from a motor-vehicle accident. To give her lawyers access to her medical records, she signed a form meant to satisfy the strict requirements laid out by the Health Insurance Portability and Accountability Act, also known as HIPAA.

With that document in hand, Moya’s lawyer sought to obtain her medical records from Aurora Health Care, the medical provider that had treated Moya for her injuries. As often happens with such requests, Healthport, an Atlanta-based company that contracts with Aurora to fulfill such requests, made the release of the records conditional on the payment of fees.

In the end, Healthport collected more than $500 from the firm for 11 sets of certified records, according to court documents. The charges included not only retrieval and certification fees but also a fee for each page that was copied. To compensate the firm, Moya ended up subtracting the charges from her settlement.

Moya responded with a class-action lawsuit filed against Healthport in 2013. Among other things, she argued that her written authorization should have been enough to let her lawyers see the records.

Many health care providers, in contrast, contend the fee exemptions should apply only to people who are authorized by patients to make medical decisions for them.

Sarah Coyne, a lawyer at Quarles & Brady who often represents health care providers, said she firmly believes that state statutes do not allow the fees to be waived simply by signing a HIPAA form that authorizes an attorney to view and obtain medical records.

“There’s nothing stopping (attorneys) from getting that authorization,” she said. “The HIPPA forms just aren’t enough.”

One reason the forms fall short, she said, is that lawyers simply do not have as much authority as relatives, guardians or similar people to make medical decisions on the behalf of patients. Coyne also noted that lawmakers amended the state’s health-records statutes in 2014 so that state public defenders would be exempt from records fees, save for copying fees.

The change would have been unnecessary had any attorney who had written permission already been able to view and obtain records without paying fees, she said.

Coyne said the medical-records statutes in question date to 1979. The dispute itself, though, is of a more recent vintage.

“I have had it come up for a bunch of providers,” Coyne said. “It seems to be a movement from the plaintiff’s bar.”

The state plaintiff’s bar association, the Wisconsin Association for Justice, has yet to submit an amicus curiae brief in the case.

As for Moya’s class-action suit, it enjoyed some early successes only to be dealt a setback on appeal. Moya won three victories in Milwaukee County Circuit Court, overcoming a motion of dismissal, a motion for summary judgment and a motion for reconsideration, all of which were filed by Healthport.

Rebuffed at that level, Healthport appealed. This time, the District 1 Court of Appeals found for Healthport. The court ruled that to qualify for an exemption from the fees, the person requesting medical records must also be able to make health care-related decisions for the client.

Moya appealed the ruling in December, and the state Supreme Court in April decided to review the case.

John Franke, a lawyer for Healthport, declined to comment.

In line with Coyne, Healthport is arguing that personal-injury lawyers whose clients sign releases for their medical records have only been given the ability to view and obtain the records. For an exemption to be granted, patients would also have to give lawyers authority to tell health care providers to release the medical information in the first place.

That interpretation, Healthport is contending, makes the most sense in light of both the context of the state’s medical-records statutes and the 2014 amendment exempting state public defenders from paying anything other than copying fees for clients’ records.

Oral arguments in the case are scheduled before the Wisconsin Supreme Court at 1:30 p.m. on Oct. 20.

About Erika Strebel,

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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