2017 Wisconsin Statutes & Annotations
Chapter 146. Miscellaneous health provisions.
146.81 Health care records; definitions.

Universal Citation: WI Stat § 146.81 (2017)

146.81 Health care records; definitions. In ss. 146.81 to 146.84:

(1) “Health care provider" means any of the following:

(a) A nurse licensed under ch. 441.

(b) A chiropractor licensed under ch. 446.

(c) A dentist licensed under ch. 447.

(d) A physician, physician assistant, perfusionist, or respiratory care practitioner licensed or certified under subch. II of ch. 448.

(dg) A physical therapist or physical therapist assistant licensed under subch. III of ch. 448.

(dr) A podiatrist licensed under subch. IV of ch. 448.

(em) A dietitian certified under subch. V of ch. 448.

(eq) An athletic trainer licensed under subch. VI of ch. 448.

(es) An occupational therapist or occupational therapy assistant licensed under subch. VII of ch. 448.

(f) An optometrist licensed under ch. 449.

(fm) A pharmacist licensed under ch. 450.

(g) An acupuncturist certified under ch. 451.

(h) A psychologist licensed under ch. 455.

(hg) A social worker, marriage and family therapist, or professional counselor certified or licensed under ch. 457.

(hm) A speech-language pathologist or audiologist licensed under subch. II of ch. 459 or a speech and language pathologist licensed by the department of public instruction.

(hp) A massage therapist or bodywork therapist licensed under ch. 460.

(i) A partnership of any providers specified under pars. (a) to (hp).

(j) A corporation or limited liability company of any providers specified under pars. (a) to (hp) that provides health care services.

(k) A cooperative health care association organized under s. 185.981 that directly provides services through salaried employees in its own facility.

(L) A hospice licensed under subch. VI of ch. 50.

(m) An inpatient health care facility, as defined in s. 50.135 (1).

(n) A community-based residential facility, as defined in s. 50.01 (1g).

(p) A rural medical center, as defined in s. 50.50 (11).

(q) An ambulance service provider, as defined in s. 256.01 (3).

(r) An emergency medical services practitioner, as defined in s. 256.01 (5).

(s) An emergency medical responder, as defined in s. 256.01 (4p).

(2) “Informed consent" means written consent to the disclosure of information from patient health care records to an individual, agency or organization that includes all of the following:

(a) The name of the patient whose record is being disclosed.

(b) The type of information to be disclosed.

(c) The types of health care providers making the disclosure.

(d) The purpose of the disclosure such as whether the disclosure is for further medical care, for an application for insurance, to obtain payment of an insurance claim, for a disability determination, for a vocational rehabilitation evaluation, for a legal investigation or for other specified purposes.

(e) The individual, agency or organization to which disclosure may be made.

(f) The signature of the patient or the person authorized by the patient and, if signed by a person authorized by the patient, the relationship of that person to the patient or the authority of the person.

(g) The date on which the consent is signed.

(h) The time period during which the consent is effective.

(3) “Patient" means a person who receives health care services from a health care provider.

(4) “Patient health care records" means all records related to the health of a patient prepared by or under the supervision of a health care provider; and all records made by an ambulance service provider, as defined in s. 256.01 (3), an emergency medical services practitioner, as defined in s. 256.01 (5), or an emergency medical responder, as defined in s. 256.01 (4p), in administering emergency care procedures to and handling and transporting sick, disabled, or injured individuals. “Patient health care records" includes billing statements and invoices for treatment or services provided by a health care provider and includes health summary forms prepared under s. 302.388 (2). “Patient health care records" does not include those records subject to s. 51.30, reports collected under s. 69.186, records of tests administered under s. 252.15 (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), records related to sales of pseudoephedrine products, as defined in s. 961.01 (20c), that are maintained by pharmacies under s. 961.235, fetal monitor tracings, as defined under s. 146.817 (1), or a pupil's physical health records maintained by a school under s. 118.125.

(5) “Person authorized by the patient" means the parent, guardian, or legal custodian of a minor patient, as defined in s. 48.02 (8) and (11), the person vested with supervision of the child under s. 938.183 or 938.34 (4d), (4h), (4m), or (4n), the guardian of a patient adjudicated incompetent in this state, the personal representative, spouse, or domestic partner under ch. 770 of a deceased patient, any person authorized in writing by the patient or a health care agent designated by the patient as a principal under ch. 155 if the patient has been found to be incapacitated under s. 155.05 (2), except as limited by the power of attorney for health care instrument. If no spouse or domestic partner survives a deceased patient, “person authorized by the patient" also means an adult member of the deceased patient's immediate family, as defined in s. 632.895 (1) (d). A court may appoint a temporary guardian for a patient believed incompetent to consent to the release of records under this section as the person authorized by the patient to decide upon the release of records, if no guardian has been appointed for the patient.

History: 1979 c. 221; 1981 c. 39 s. 22; 1983 a. 27; 1983 a. 189 s. 329 (1); 1983 a. 535; 1985 a. 315; 1987 a. 27, 70, 264; 1987 a. 399 ss. 403br, 491r; 1987 a. 403; 1989 a. 31, 168, 199, 200, 229, 316, 359; 1991 a. 39, 160, 269; 1993 a. 27, 32, 105, 112, 183, 385, 443, 496; 1995 a. 27 s. 9145 (1); 1995 a. 77, 98, 352; 1997 a. 27, 67, 75, 156, 175; 1999 a. 9, 32, 151, 180, 188; 2001 a. 38, 70, 74, 80, 89; 2005 a. 262, 387; 2007 a. 108; 2009 a. 28, 165, 209, 355; 2015 a. 195 s. 83; 2015 a. 265; 2017 a. 12.

A letter written by a person not licensed as a health care provider under sub. (1) was not a record under sub. (4) prepared under the supervision of a health care provider under sub. (1) (j) when the person was employed by a corporation that employed health care professionals but the corporation's shareholders were not health care providers. Hart v. Bennet, 2003 WI App 231, 267 Wis. 2d 919, 672 N.W.2d 306, 02-2993.

When a health care provider denied access to records on the ground that the patient was possibly incompetent to consent to the release of the records, it was obligated under sub. (5) to petition for a temporary guardian for the patient. Szymczak v. Terrace at St. Francis, 2006 WI App 3, 289 Wis. 2d 110, 709 N.W.2d 103, 04-2067.

The plaintiff in this case failed to state a claim that the defendant health care provider violated s. 146.83 (4) (b). The plaintiff did not allege that the defendant withheld any record when it alleged that the defendant concealed the results of an internal investigation into why and under what authority its employees had accessed the plaintiff's health care records. Any records the defendant might have kept regarding its internal investigation would not have related to the plaintiff's health or any treatment or services received. Accordingly, such information, even if reduced to a record, would not have constituted a patient health care record, as that term is defined in sub. (4). Wall v. Pahl, 2016 WI App 71, 371 Wis. 2d 716, 886 N.W.2d 373, 15-1230.

The context of the definition of “person authorized by the patient" in sub. (5) indicates that “any person authorized in writing by the patient" is a stand-alone category, separate and apart from the remaining categories, containing no limitations beyond those expressly written. This language requires only a person with a written authorization from the patient. The statute does not require that the authorization be an authorization to make health care decisions on behalf of the patient. Moya v. Healthport Technologies, LLC, 2017 WI 45, 375 Wis. 2d 38, 894 N.W.2d 405, 14-2236.

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