Beatriz Banuelos v. University of Wisconsin Hospitals and Clinics Authority

2023 WI 25SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1582
COMPLETE TITLE: Beatriz Banuelos,
Plaintiff-Appellant,
v.
University of Wisconsin Hospitals and Clinics
Authority,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d 568, 966 N.W.2d 78PDC No: 2021 WI App 70 - Published
OPINION FILED: April 4, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 1, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Juan B. Colas
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Daniel A. Manna, Jay P. Lefkowitz, P.C., Gilad
Bendheim, Kelsey Davis, and Gass Turek LLC, Milwaukee, and
Kirkland & Ellis LLP, New York City. There was an oral argument
by Jay P. Lefkowitz, P.C.
For the plaintiff-appellant, there was a brief filed by
Jesse B. Blocher, Peter M. Young, Corey G. Lorenz, and Habush,
Habush, & Rottier, S.C., Waukesha. There was an oral argument by
Jesse B. Blocher.
An amicus curiae brief was filed by Daniel E. Conley,
Matthew J. Splitek, Alexandra W. Shortridge, and Quarles & Brady
LLP, Milwaukee, for Aurora Health Care, Inc.
An amicus curiae brief was filed by Scott E. Rosenow and
WMC Litigation Center, Madison, for the Wisconsin Civil Justice
Council, Inc.
An amicus curiae brief was filed by Brett A. Eckstein,
Edward E. Robinson, Brian D. Anderson, and Cannon & Dunphy,
S.C., Brookfield, and Everson, Whitney, Everson & Brehm, S.C.,
Green Bay, for the Wisconsin Association for Justice and
Wisconsin Defense Counsel.
An amicus curiae brief was filed by Sara J. MacCarthy,
Stephane P. Fabus, Heather D. Mogden, and Hall, Render, Killian,
Heath & Lyman, P.C., Milwaukee, for the Wisconsin Hospital
Association, Inc., 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.
An amicus curiae brief was filed by Susan E. Lovern,
Christopher E. Avallone, and von Briesen & Roper, S.C.,
Milwaukee, for the Association of Health Information Outsourcing
Services.
2
2023 WI 25NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1582
(L.C. No. 2020CV903)
STATE OF WISCONSIN : IN SUPREME COURT
Beatriz Banuelos,
Plaintiff-Appellant,
FILED
v.
APR 4, 2023
University of Wisconsin Hospitals and Clinics
Authority, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, University of
Wisconsin Hospitals and Clinics Authority (UW Hospitals), seeks
review of a published court of appeals opinion reversing and
remanding the circuit court's dismissal of Beatriz Banuelos's
No. 2020AP1582
complaint for failure to state a claim upon which relief can be
granted.1 Banuelos contends that she was unlawfully charged per
page fees for copies of her medical records which were provided
in an electronic format. The court of appeals agreed and
determined that Wis. Stat. § 146.83(3f) (2017-18)2 does not
permit a health care provider to charge fees for providing
copies of patient health care records in an electronic format.
¶2 UW Hospitals argues, in essence, that the court of
appeals erred because Wis. Stat. § 146.83(3f) is silent as to
fees for electronic copies of patient health care records.
Accordingly, it does not prohibit a health care provider
charging fees for providing such copies. And thus, Banuelos's
complaint alleging unlawful and excess charges fails to state a
claim upon which relief can be granted.3
¶3 Banuelos offers a different interpretation of the
statute's silence. She asserts that because fees for electronic
copies are not enumerated in the statutory list of permissible
fees that a health care provider may charge, the fees charged
here are unlawful under state law. As a result, Banuelos
maintains that her complaint survives the motion to dismiss.
Banuelos v. Univ. of Wis. Hosps. and Clinics Auth., 2021
1
WI App 70, 399 Wis. 2d 568, 966 N.W.2d 78 (reversing and
remanding the order of the circuit court for Dane County, Juan
Colas, Judge).
All subsequent references to the Wisconsin Statutes are to
2
the 2017-18 version unless otherwise indicated.
3 See Wis. Stat. § 802.06(2)(a)6.
2
No. 2020AP1582
¶4 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.
¶5 Accordingly, we affirm the decision of the court of
appeals.
I
¶6 The essential facts set forth below are taken from
Banuelos's complaint. Because we are reviewing the circuit
court's determination of a motion to dismiss for failure to
state a claim, we must assume that these facts are true. Yacht
Club at Sister Bay Condo. Ass'n, Inc. v. Village of Sister Bay,
2019 WI 4, ¶4, 385 Wis. 2d 158, 922 N.W.2d 95.
¶7 Banuelos signed and submitted a request to UW
Hospitals for copies of her medical records in electronic
format.4 The request directed and authorized that the records be
transmitted to her attorneys.
4 Banuelos requested that her records be provided
electronically pursuant to the Health Information Technology for
Economic and Clinical Health (HITECH) Act, 42 U.S.C.
§ 17935(e)(1) and 45 C.F.R. § 164.524(c).
(continued)
3
No. 2020AP1582
¶8 UW Hospitals complied with the request through its
service provider, Ciox, and transmitted copies of Banuelos's
patient health care records electronically to her attorneys,
along with an invoice for $109.96.5 The requested payment for
As described by UW Hospitals, "[t]hat federal statutory
regime authorizes (in certain circumstances) a patient to
request that copies of electronic health records be provided in
an electronic format to the patient, or to a designated third
party, such as her personal injury attorney." "[I]n the case
that a covered entity uses or maintains an electronic health
record . . . the individual shall have a right to obtain from
such covered entity a copy of such information in an electronic
format and . . . to direct the covered entity to transmit such
copy directly to an entity or person designated by the
individual," 42 U.S.C. § 17935(e)(1), which is mandatory "if it
is readily producible in such form and format." 45 C.F.R.
§ 164.524(c).
There is no issue of federal law that has been presented to
this court to address.
5 Justice Roggensack's dissent assumes the role of an
advocate by deciding this case on an argument it raises sua
sponte, and then, based on that never-before-raised argument, it
attempts to transform the motion in this case from a motion to
dismiss (which it is) into a motion for summary judgment (which
it is not).
In this motion to dismiss, we accept the facts alleged in
Banuelos's complaint as true. UW Hospitals is the sole
defendant here and the complaint avers wrongdoing against it
alone. Nevertheless, the dissent attempts to read into the
complaint wrongdoing by Ciox, thereby creating factual issues
regarding who did what, and whose acts caused the harm.
(continued)
4
No. 2020AP1582
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
Justice Roggensack's dissent's "read in" is accomplished
only by omitting an essential part of the complaint's averments.
Citing to paragraphs 16 and 17 and Exhibit C of the complaint,
the dissent describes Banuelos's complaint, stating "her
Complaint alleges that Ciox Health, LLC (Ciox), who is not a
health care provider, supplied the health care records and
charged $109.96." Dissent, ¶47. What the dissent omits is that
the complaint actually alleges that the supplying of the records
and the charges incurred were done at the instance of UW
Hospitals, with Ciox as a conduit.
Paragraph 16 avers that "Defendant, through its business
associate, Ciox, complied with the request and transmitted the
medical records electronically to Habush Habush & Rottier S.C."
Paragraph 17 avers, "The response from defendant, through its
business associate, Ciox, included an invoice requesting payment
of $109.96."
Thus, all the complaint alleges with respect to Banuelos's
specific case is that UW Hospitals "through its business
associate, Ciox, complied with the request and transmitted the
medical records electronically . . . [and] included an invoice
requesting payment of $109.96."
In order to reach Justice Roggensack's dissent's
conclusion, further factual development would be necessary to
establish Ciox's role, which typically would be the subject of a
summary judgment motion, not a motion to dismiss. For summary
judgment methodology see Wis. Stat. § 802.08.
Perhaps the most devastating response to the dissent is
that UW Hospitals, in its reply brief, specially discarded the
dissent's newly embraced argument, deeming it "irrelevant." See
infra, ¶18 n.8.
5
No. 2020AP1582
the maximum rate for paper copies of patient health care records
permitted under Wis. Stat. § 146.83(3f).6
¶9 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.
¶10 In response, UW Hospitals filed a motion to dismiss,
alleging in its supporting brief that Banuelos's claims were
"fundamentally flawed" with respect to her interpretation of
Wis. Stat. § 146.83(3f).7 The circuit court granted the motion.
It concluded that "the legislature has failed to cover the
situation where records are requested in electronic form and
provided in electronic form. And therefore, the charge that was
made or demanded is not a violation." It reasoned that because
the fee UW Hospitals charged was not a violation of Wisconsin
These numbers deviate from those listed in Wis. Stat. §
6146.83(3f)(b)1. due to the operation of § 146.83(3f)(c)2., which
provides for adjustments in the amounts specified based on
changes in the consumer price index.
In its motion to
7 dismiss, UW Hospitals did not specify
under which paragraph of Wis. Stat. § 802.06(2) it sought
dismissal. The circuit court construed the motion as a motion
to dismiss for failure to state a claim, and we will do the
same.
6
No. 2020AP1582
law, Banuelos could not prevail in this case and dismissal of
the complaint was warranted.
¶11 Banuelos appealed, and the court of appeals reversed
the circuit court's order. Banuelos v. Univ. of Wis. Hosps. and
Clinics Auth., 2021 WI App 70, 399 Wis. 2d 568, 966 N.W.2d 78.
The court of appeals conducted a plain meaning analysis of Wis.
Stat. § 146.83(3f) and determined that the statute plainly and
unambiguously permits a health care provider to charge fees for
the formats enumerated in the statute and only those formats.
Because fees for copies of records in an electronic format are
not enumerated, the court of appeals concluded that such fees
cannot lawfully be charged. UW Hospitals petitioned for this
court's review.
II
¶12 We are called upon to review the court of appeals'
decision reversing and remanding the circuit court's dismissal
of Banuelos's complaint for failure to state a claim. In order
to withstand a motion to dismiss for failure to state a claim,
the complaint must plead facts, which if true, would entitle the
plaintiff to relief. Wis. Stat. § 802.02(1)(a); Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶21, 356 Wis. 2d
665, 849 N.W.2d 693. Whether a complaint states a claim upon
which relief can be granted is a question of law this court
reviews independently of the determinations rendered by the
circuit court and court of appeals. Hinrichs v. DOW Chem. Co.,
2020 WI 2, ¶23, 389 Wis. 2d 669, 937 N.W.2d 37.
7
No. 2020AP1582
¶13 Our review also requires us to interpret several
Wisconsin statutes. Statutory interpretation is likewise a
question of law that we review independently of the
determinations of the circuit court and court of appeals. Sw.
Airlines Co. v. DOR, 2021 WI 54, ¶16, 397 Wis. 2d 431, 960
N.W.2d 384.
III
¶14 The sufficiency of the claims alleged in Banuelos's
complaint depends upon our interpretation of Wis. Stat. §
146.83(3f). Interestingly, both parties embrace a plain meaning
interpretation of the statute, but arrive at opposite
conclusions.
¶15 In resolving the inquiry of whether Wis. Stat.
§ 146.83(3f) permits a fee to be charged for copies of health
care records in electronic format, we are aided by some familiar
tools of statutory interpretation. With those interpretative
tools in hand, we examine first the text of § 146.83(3f). Next,
we look to § 146.83(3f)'s statutory history. Finally, we
address UW Hospitals' arguments advancing that the scope of
§ 146.83(3f) does not include electronic records.
A
¶16 The familiar tools of statutory interpretation provide
guiding principles for our inquiry. "[T]he purpose of statutory
interpretation is to determine what the statute means so that it
may be given its full, proper, and intended effect." State ex
rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110. "We assume that the legislature's
8
No. 2020AP1582
intent is expressed in the statutory language." Id. "In
construing or interpreting a statute the court is not at liberty
to disregard the plain, clear words of the statute." Id., ¶46.
If the text of the statute is plain and unambiguous, our inquiry
stops there. Id., ¶45.
¶17 Statutory language is given its "common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. We interpret statutory language in
context, "as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46. Language is
also interpreted to avoid surplusage and to give reasonable
effect to every word. Id. A review of statutory history is
part of a plain meaning analysis. Richards v. Badger Mut. Ins.
Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581.
B
¶18 In applying these principles, we look first to the
text of Wis. Stat. § 146.83(3f). It contains two provisions
important to our analysis. Paragraph (a) states:
Except as provided in sub. (1f) or s. 51.30 or
146.82(2), if a person requests copies of a patient's
health care records, provides informed consent, and
pays the applicable fees under par. (b), the health
care provider shall provide the person making the
request copies of the requested records.
9
No. 2020AP1582
§ 146.83(3f)(a).8
¶19 This provision unambiguously outlines three
requirements that a person requesting a copy of patient health
care records must fulfill: (1) request copies, (2) provide
informed consent, and (3) pay the applicable fee set forth in
paragraph (b). Id. Once a person has met those three
requirements, a health care provider "shall provide" the person
with the requested copies. Id.; Heritage Farms, Inc. v. Markel
Ins. Co. (Heritage Farms II), 2012 WI 26, ¶32, 339 Wis. 2d 125,
810 N.W.2d 465 ("[W]e presume that the word 'shall' is
mandatory.").
¶20 The second provision important to our discussion is
paragraph (b), which provides:
8As referenced above in footnote 5, Justice Roggensack's
dissent produces a new argument on behalf of UW Hospitals,
arguing that because Ciox is not a health care provider, it is
not constrained by Wis. Stat. § 146.83(3f). Justice
Roggensack's Dissent, ¶66. Neither party developed this
argument in its brief, nor did this argument arise during oral
arguments in this case. UW Hospitals, in fact, actually
eschewed this argument in its reply brief, calling it
"irrelevant" to this case:
First, Banuelos's mud-slinging in relation to Ciox
cannot have any bearing on this case. This court
recently held that the fee restrictions in
§ 146.83(3f)(b) apply only to health care providers,
not their vendors. See [Townsend v. ChartSwap, LLC,
2021 WI 86, ¶¶16—17, 399 Wis. 2d 599, 967 N.W.2d 21].
Accordingly, the statute is, and always has been,
directed at Wisconsin health care providers, and
whether or not a health care provider may choose to
outsource its records collection processes is
irrelevant.
10
No. 2020AP1582
Except as provided in sub. (1f), a health care
provider may charge no more than the total of all of
the following that apply for providing the copies
requested under par. (a):
1. For paper copies: $1 per page for the first 25
pages; 75 cents per page for pages 26 to 50; 50 cents
per page for pages 51 to 100; and 30 cents per page
for pages 101 and above.
2. For microfiche or microfilm copies, $1.50 per page.
3. For a print of an X-ray, $10 per image.
4. If the requester is not the patient or a person
authorized by the patient, for certification of
copies, a single $8 charge.
5. If the requester is not the patient or a person
authorized by the patient, a single retrieval fee of
$20 for all copies requested.
6. Actual shipping costs and any applicable taxes.
Wis. Stat. § 146.83(3f)(b).
¶21 Paragraph (b) sets out the parameters of the third
requirement, delineating maximum allowable fees that may be
charged for patient health care records. Listed in the statute
are three formats in which records can be provided and fees
charged, and only three formats. For paper copies, the fee is a
per page charge of $1 for the first 25 pages; 75 cents for pages
26-50; 50 cents for pages 51-100; and 30 cents for pages above
100. Id. Additionally, a health care provider is allowed to
charge no more than $1.50 per page for microfiche or microfilm
copies and $10 per image for x-ray prints. Id. Conspicuously
missing is any reference to copies of "electronic records" or
any substantially similar term.
11
No. 2020AP1582
¶22 The text of the statute sets forth that health care
providers "may charge no more than the total of all of the
following that apply for providing the copies requested." Id.That is, a health care provider may charge up to the rates
prescribed in the statute for furnishing copies of paper
records, microfiche or microfilm records, or x-rays. We observe
that there is no provision in the text permitting the charge of
fees for copies in formats for which the legislature did not
expressly authorize a fee.
¶23 The court of appeals relied on a similar observation
in reaching its conclusion that no fee may be charged for
providing copies of patient health care records in an electronic
format. Banuelos, 399 Wis. 2d 568, ¶15. It initially focused
on the introductory language of paragraph (b), that a health
care provider may "charge no more than the total of all of the
following," to conclude that "para. (b) defines the total
universe of fees that a provider may collect from a requester
for the service of fulfilling a request for patient health care
records under para. (a)." Id. "This means that the fees a
health care provider is permitted to charge must be equal to or
less than the total of whichever, if any, of the six fees
enumerated in subds. (b)1.-6. that apply . . . ." Id.¶24 We agree with the court of appeals that the plain text
of Wis. Stat. § 146.83(3f) indicates that if the three
requirements laid out in paragraph (a) are met, the healthcare
provider must provide copies of the patient's health care
records. We further agree with the court of appeals that the
12
No. 2020AP1582
statute does not permit charges for copies of electronic records
because the statute does not enumerate electronic formats as one
of the three formats for which a health care provider may charge
a fee.
C
¶25 A review of the statutory history of Wis. Stat.
§ 146.83(3f) yields a similar result. Statutory history refers
to previously enacted versions of the statute which have
subsequently been amended by the legislature.9 Heritage Farms,
Inc. v. Markel Ins. Co. (Heritage Farms I), 2009 WI 27, ¶15
n.10, 316 Wis. 2d 47, 762 N.W.2d 652. Prior versions of a
statute were enacted law and constitute an intrinsic source,
part and parcel of a plain meaning interpretation. Richards,
309 Wis. 2d 541, ¶22.
¶26 Prior to 2009, the relevant statutes did not mention
electronic copies of medical records. Wis. Stat.
§ 146.83(3m)(a) (2007-08).10 At the time, the statute governing
9 Statutory history is distinct from legislative history,
which "is extrinsic evidence of a law's meaning and becomes
relevant only to confirm plain meaning or when a statute remains
ambiguous even after 'the primary intrinsic analysis has been
exhausted[.]'" Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI
7, ¶21, 400 Wis. 2d 417, 970 N.W.2d 1.
10 Wis. Stat. § 146.83(3m)(a)(2007-08) states:
The department shall, by rule, prescribe fees that are
based on an approximation of actual costs. The fees,
plus applicable tax, are the maximum amount that a
health care provider may charge under sub. (1)(b) for
duplicate patient health care records and under sub.
(1)(c) for duplicate X−ray reports or the referral of
(continued)
13
No. 2020AP1582
access to patient health care records merely provided that the
Wisconsin Department of Health Services (DHS) shall prescribe
fees, based on actual costs, which constitute the maximum amount
a health care provider may charge. Id.¶27 In 2009, the legislature took away DHS's broad
authority to prescribe fees and instead set permissible fees by
statute. See 2009 Wis. Act 28, § 2433d. The new statute, Wis.
Stat. § 146.83(1f)(c)3m. (2009-10), referenced electronic
copies, providing that "a health care provider may charge no
more than the total of all of the following that apply for
providing copies requested . . . For providing copies in digital
or electronic format, a charge for all copies requested." This
language was mirrored in § 146.83(1h) (2009-10), which addressed
X−rays to another health care provider of the
patient's choice. The rule shall also permit the
health care provider to charge for actual postage or
other actual delivery costs. In determining the
approximation of actual costs for the purposes of this
subsection, the department may consider all of the
following factors:
1. Operating expenses, such as wages, rent, utilities,
and duplication equipment and supplies.
2. The varying cost of retrieval of records, based on
the different media on which the records are
maintained.
3. The cost of separating requested patient health
care records from those that are not requested.
4. The cost of duplicating requested patient health
care records.
5. The impact on costs of advances in technology.
14
No. 2020AP1582
fees for a patient health care record request made by someone
other than the patient themselves. A new provision was also
created, stating:
Upon the request of the person requesting copies of
patient health care records under sub. (1f) or (1h),
the health care provider shall provide the copies in a
digital or electronic format unless the health care
provider's record system does not provide for the
creation or transmission of records in a digital or
electronic format, in which case the health care
provider shall provide the person a written
explanation for why the copies cannot be provided in a
digital or electronic format.
2009 Wis. Act 28, § 2433h (creating § 146.83(1k)).
¶28 In 2011, subsequent to a change in federal law,11 the
Wisconsin Legislature repealed § 146.83(1f) and (1h) (2009-10)
and created Wis. Stat. § 146.83(3f) as it is today, without
specific reference to electronic records. 2011 Wis. Act 32,
§§ 2649x-2663m. Two key changes regarding what was formerly
Wis. Stat. § 146.83(1f) took place. First, the legislature
deleted two charges that were previously permissible. One now-
deleted provision was § 146.83(1f)(c)3m. (2009-10), which as set
forth above provided an allowable "charge" for the provision of
electronic records. The other deleted provision authorized a
surcharge contingent on the timing of requested delivery.
As part of the American Recovery and Reinvestment Act of
11
2009, federal law was enacted encouraging health care providers
to adopt electronic health records, mandating that individuals
may receive electronic copies and setting a fee limitation on
such copies. American Recovery and Reinvestment Act of 2009,
H.R. 1, 111th Cong. § 13001(a) H.R. 1-112 (2009) (enacted).
15
No. 2020AP1582
§ 146.83(1f)(c)5. (2009-10). Second, the legislature added two
permissible charges. Those charges, which still exist today,
create an additional surcharge for a third-party requester,
i.e., a requester who is not the patient or a person authorized
by the patient. § 146.83(3f)(b)4-5.
¶29 Although Wisconsin statutes previously permitted a
charge for the provision of electronic copies of patient health
care records, that language has since been repealed. The
legislature's chosen actions resulted in the comprehensive list
of permitted fees a health care provider may charge for copies
of patient health care records. We cannot interpret the
subsequently amended statute to permit a charge for copies of
electronic records, as doing so would require us to read
language back into the statute that is no longer there. This we
cannot do. See Milwaukee J. Sentinel v. City of Milwaukee, 2012
WI 65, ¶37, 341 Wis. 2d 607, 815 N.W.2d 367.
D
¶30 UW Hospitals challenges this plain meaning
interpretation of the text of Wis. Stat. § 146.83(3f) and its
statutory history by citing to surrounding statutes.
Specifically, it looks to Wis. Stat. § 146.836, entitled
"Applicability," and Wis. Stat. § 146.81(4), which defines
"patient health care records," to argue that the scope of
§ 146.83(3f) does not cover electronic records.
¶31 It argues that a determination of whether the fee
provision in paragraph (b) of Wis. Stat. § 146.83(3f) even
applies depends on whether the records request initially
16
No. 2020AP1582
qualifies as a request pursuant to paragraph (a). UW Hospitals
observes that nothing in paragraph (a) indicates that a request
for patient health care records includes electronic records. It
advances that such an omission was intentional because a nearby
statute, Wis. Stat. § 146.836, unambiguously provides that only
four statutory provisions apply to electronic records.
Section 146.836 states:
Sections 146.815, 146.82, 146.83(4) and 146.835[12]
apply to all patient health care records, including
those on which written, drawn, printed, spoken,
visual, electromagnetic or digital information is
recorded or preserved, regardless of physical form or
characteristics.
According to UW Hospital, because § 146.83(3f) is not one of the
four statutory provisions applicable to electronic records, the
scope of paragraph (a) clearly does not include electronic
records.
¶32 Next, UW Hospitals looks to the definition of "patient
health care records" found in Wis. Stat. § 146.81(4) in an
effort to further rebut the court of appeals' plain meaning
interpretation of Wis. Stat. § 146.83(3f). The definition
contained in § 146.81(4) in relevant part provides that
The sections referred to in this statute all relate to
12
the content and confidentiality of records. The titles in order
of appearance in Wis. Stat. § 146.836 are as follows: "Contents
of certain patient health care records;" "Confidentiality of
patient health care records;" "Access to patient health care
records" (specifying prohibited actions relating to records);
and "Parents denied physical placement rights." Wis. Stat.
§§ 146.815; 146.82; 146.83(4); 146.835.
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No. 2020AP1582
"'[p]atient health care records' means all records related to
the health of a patient prepared by or under the supervision of
a health care provider . . . ." § 146.81(4). Relying on the
statutory definition, the court of appeals determined that
"'[p]atient 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 that "all" records "means all
records," including electronic records. See Banuelos, 399
Wis. 2d 568, ¶12 n.4.
¶33 UW Hospitals argues that an examination of the plain
text of the statutory definition reveals that it addresses the
substance of the records and not their format. It explains that
the records must "relate to the health of the patient" and be
"prepared by or under the supervision of the health care
provider," which are matters of substance. UW Hospitals thus
reasons that the definition does not contemplate records in
electronic format.
¶34 Additionally, according to UW Hospitals, to interpret
the definition as applying to all formats would render
superfluous the "Applicability" statute, Wis. Stat. § 146.836,
given that it limits the applicability of electronic records
formats to only four enumerated provisions. To explain briefly
in the words of UW Hospitals, "[i]f 'patient health care
records' included electronic records whenever that term appears,
then there was no need for the legislature to specify" in the
"Applicability" section that the definition of "patient health
18
No. 2020AP1582
care records" in the four listed provisions also applies to
electronic records.
¶35 We are unpersuaded and address each argument in turn.
To start, we conclude that Banuelos's request for electronic
records was a request under Wis. Stat. § 146.83(3f)(a). This
conclusion is informed by the definition of "patient health care
records." In turning to the statutory definition of "patient
health care record" in Wis. Stat. § 146.81(4) we make two
important observations. Initially, we observe the threshold
language in § 146.81 indicates that the definitions listed in
§ 146.81 apply to "ss. 146.81 to 146.84." § 146.81. This range
includes the statute at the center of our analysis, Wis. Stat. §
146.83. We observe next that the legislature used the inclusive
term, "all" in the definition of "patient health care record."
Indeed, it is evident that "all records" means "all records."
See Pfister v. Milwaukee Econ. Dev. Corp., 216 Wis. 2d 243, 270,
576 N.W.2d 554 (Ct. App. 1998) (concluding that "'all' means
'all'").
¶36 Thus under this definition, "patient health care
record" means "all records," including electronic records.
Because paragraph (a) regulates access to "patient health care
records," Wis. Stat. § 146.83(3f)(a) encompasses requests for
electronic records as well. We resolve UW Hospitals' argument
that paragraph (a) does not apply to electronic records due to
the "Applicability" statute, Wis. Stat. § 146.836, in the same
manner as its related argument that to interpret "patient health
care records" as "all records," renders superfluous § 146.836.
19
No. 2020AP1582
¶37 These arguments fail for several reasons. First, they
ignore the fact that Wis. Stat. § 146.83(3f) regulates access to
"copies" of patient health care records, not the actual records.
The text of Wis. Stat. § 146.836 "does not address the
significance of the distinction between the reference to
'electronic records' in § 146.836 and the reference to 'copies
of a patient's health care records' in Wis. Stat. § 146.83(3f)."
Banuelos, 399 Wis. 2d 568, ¶39. UW Hospitals is not able to
articulate any language in the "Applicability" section limiting
"copies" to a particular format.
¶38 Second, UW Hospitals' interpretation of "patient
health care record" as excluding electronic records for purposes
of all but four statutory sections is unavailing because of the
impact such an interpretation would have on other statutes
discussing "patient health care records." For example, we look
to Wis. Stat. § 146.819(1),13 which governs a health care
13 Wis. Stat. § 146.819(1) states:
Except as provided in sub. (4), any health care
provider who ceases practice or business as a health
care provider or the personal representative of a
deceased health care provider who was an independent
practitioner shall do one of the following for all
patient health care records in the possession of the
health care provider when the health care provider
ceased business or practice or died:
(a) Provide for the maintenance of the patient health
care records by a person who states, in writing, that
the records will be maintained in compliance with ss.
146.81 to 146.835.
(continued)
20
No. 2020AP1582
provider's responsibility upon ceasing practice, including that
such a provider must maintain, delete, or destroy patient health
care records in their possession. UW Hospitals' interpretation
suggests that § 146.819(1) requires that a former health care
provider must maintain or destroy only physical patient health
care records, as records in electronic format would be excluded
from this statute's purview. Given the ubiquity of electronic
record keeping, excluding electronic records from this statutory
mandate because of an amorphous link to Wis. Stat. § 146.836makes no sense. See also Wis. Stat. § 146.84 (excluding records
in electronic format from a section imposing violations for
actions taken in relation to handling related to "patient health
care records" would likewise make no sense).
¶39 Third, the text of Wis. Stat. § 146.836 limits its
applicability to four enumerated statutes, and ensures the
confidentiality of "written, drawn, printed, spoken, visual" and
electronic information. The enumerated statutes are Wis. Stat.
§ 146.815 (content of hospital records); Wis. Stat. § 146.82(confidentiality of records and informed consent to access);
Wis. Stat. § 146.83(4) (prohibiting certain actions regarding
patient records); and Wis. Stat. § 146.835 (maintaining
(b) Provide for the deletion or destruction of the
patient health care records.
(c) Provide for the maintenance of some of the patient
health care records, as specified in par. (a), and for
the deletion or destruction of some of the records, as
specified in par. (b).
21
No. 2020AP1582
confidentiality from parents that are denied physical placement
of a child). Nothing in the text of § 146.836 changes the
definition of "patient health care records" as applied to Wis.
Stat. § 146.83(3f), nor any other statute. If § 146.836 was
intended to have the far reaching effect as espoused by UW
Hospitals, one would expect it to be clearly reflected in the
text.
¶40 Finally, we turn to UW Hospitals' remaining argument
that the definition of "patient health care record" is one of
substance and not format. This curious argument does not
support the conclusion UW Hospitals would have us draw from it
to exclude electronic records from the definition. Regardless
of whether it relates to the "substance" of the record or its
"format," the legislature chose to define "patient health care
records" as "all records." State ex rel. Girouard v. Cir. Ct.
for Jackson Cnty., 155 Wis. 2d 148, 156, 454 N.W.2d 792 (1990)
("When a word used in a statute is defined in the statutes, that
definition is controlling.").
¶41 Thus we conclude that Wis. Stat. § 146.836 does not
serve as an omnibus statute, intending to supersede in scope all
statutes that reference health care records. Rather, the four
enumerated statutes cover matters of content and
confidentiality, and there is nothing in the text to indicate
that its circumference was intended to expand beyond that narrow
field. It neither limits the scope of Wis. Stat.
§ 146.83(3f)(a) nor is it rendered superfluous by the definition
of "patient health care records" in Wis. Stat. § 146.81(4). We
22
No. 2020AP1582
instead remain wedded to the statutory definition of "patient
health care records," determining that "all" indeed does mean
"all."
¶42 At times it appears as though UW Hospitals' arguments
endeavor to place this court in the very midst of an important
policy decision. It frames the essence of our inquiry as: "At
bottom, this case asks who should bear the cost of supporting
these commercial entities' profit making: the Wisconsin health
care system (and ultimately, all Wisconsin patients) or the
commercial entities themselves."
¶43 It restates the question before the court as relating
to how the court should apportion the costs involved: "The
question here . . . relates to how the cost of providing
electronic records access should be apportioned as between the
health care provider and commercial third parties . . . who
choose, for their own business reasons, to obtain records
directly from health care providers rather than from the
patients who are their customers."
¶44 We disagree. At bottom, our inquiry is neither about
"who should bear the cost of supporting these commercial
entities' profit making" nor is the question before us "how the
cost of providing electronic records" should be apportioned.
Rather, our task is to discern the meaning of Wis. Stat.
§ 146.83(3f), and this we have done in the discussion above.
"It goes without saying, of course, that the legislature may
amend the fee provisions. Policy decisions are left to the
legislature." Milwaukee J. Sentinel, 341 Wis. 2d 607, ¶37.
23
No. 2020AP1582
¶45 In sum, we conclude that Wis. Stat. § 146.83(3f) does
not permit health care providers to charge fees for electronic
records. Therefore, Banuelos's complaint states a claim upon
which relief can be granted that UW Hospital's charge of $109.96
was a violation of Wisconsin law. Accordingly, we affirm the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
24
No. 2020AP1582.pdr
¶46 PATIENCE DRAKE ROGGENSACK, J. (dissenting). We
review a motion to dismiss. According to the majority opinion,
we are asked to determine whether Wis. Stat. § 146.83(3f)(b)'s
permission to health care providers to charge for copies of
health care records that are provided in paper, microfilm and X-
ray formats is also a prohibition against health care providers
charging for copies of health care records in electronic format.1
¶47 I conclude that Beatriz Banuelos's Complaint fails to
state a claim against University of Wisconsin Hospital and
Clinics Authority ("UW Hospital") because her Complaint alleges
that Ciox Health, LLC (Ciox), who is not a health care provider,
supplied the health care records and charged $109.96 for them,
payable to Ciox.2 Wisconsin Stat. § 146.83(3f)(b), invoked and
relied on by the majority opinion, does not regulate persons who
are not health care providers. Townsend v. ChartSwap, LLC, 2021
WI 86, ¶14, 399 Wis. 2d 599, 967 N.W.2d 21 (explaining that
"[b]y the terms of the statute itself, these restrictions apply
only to health care providers"); Smith v. RecordQuest, LLC, 380
F. Supp. 3d 838, 842 (E.D. Wis. 2019) (explaining that "[t]he
statute does not impose liability on a person who is not a
health care provider but who responds to records requests on
behalf of a health care provider").3
1 Majority op., ¶4.
2 Complaint, ¶¶16, 17; Banuelos – Exhibit 3 (attached to the
Complaint and to this dissent).
3 The Seventh Circuit reversed Smith v. RecordQuest, LLC,
(continued)
1
No. 2020AP1582.pdr
¶48 Permitting a claim against UW Hospital for charges
made by Ciox for the provision of health care records is not
addressed in Wis. Stat. § 146.83(3f)(b).4 Whether to permit a
claim against a health care provider for charges made by a third
party for the provision of health care records, whether the
third party is denominated a "conduit," a "business associate"
or something else, is a policy choice better left to the
legislature. The charges the Complaint alleges Ciox made here
are not contrary to the plain meaning of § 146.83(3f)(b);
therefore, the Complaint fails to state a claim against UW
Hospital and must be dismissed.
¶49 The majority opinion ignores material facts that are
alleged in Banuelos's Complaint and the effect of Townsend on
380 F. Supp 3d 838 (E.D. Wis. 2019) in Smith v. RecordQuest,
LLC, 989 F.3d 513 (7th Cir. 2021). However, in reversing the
Eastern District of Wisconsin to determine that Wis. Stat.
§ 146.83(3f)(b) applied to a "health care records company," the
Seventh Circuit relied on Townsend v. ChartSwap, LLC, 2020 WI
App 79, 395 Wis. 2d 229, 952 N.W.2d 831. Just months after the
Seventh Circuit's decision, this court reversed the Wisconsin
Court of Appeals in Townsend v. ChartSwap, LLC, 2021 WI 86, 399
Wis. 2 599, 967 N.W.2d 21. Effectively, the Eastern District
of Wisconsin's determinations in Smith are consistent with
Wisconsin law. See also id., 399 Wis. 2d 599, ¶¶9 n.6, 32.
The majority alleges that Ciox is a "conduit" and a
4
"business associate" of UW Hospital. Majority op., ¶8 n.5.
That may be true, but that does not make Ciox a health care
provider according to the definition of health care provider in
Wis. Stat. § 146.81(1). And, only health care providers are
restricted by Wis. Stat. § 146.83(3f)(b). Townsend v.
ChartSwap, LLC, 2021 WI 86, ¶14, 399 Wis. 2d 599, 967 N.W.2d 21.
2
No. 2020AP1582.pdr
the pending motion to dismiss, given those facts. Accordingly,
I respectfully dissent.5
I. BACKGROUND
¶50 Wisconsin Stat. § 146.83(3f) is central to our review.
It was enacted in 2011 Wis. Act 32 § 9321(4), effective July 1,
2011.
¶51 Banuelos alleges she requested her health care records
be sent to her attorneys in electronic format. She alleges that
the records were provided, but that she was charged fees in
excess of that permitted by Wis. Stat. § 146.83(3f)(b). UW
Hospital moved to dismiss. The circuit court granted UW
Hospital's motion because charges for electronic documents are
not mentioned in § 146.83(3f)(b) and therefore, the charge for
electronic copies was not regulated by subsec. (3f)(b).
¶52 The court of appeals reversed, concluding that it is
"self-evident" that because there is no listing of "applicable
fees under par. (b)" for electronic copies, the records must
still be provided. However, no fees may be charged.6
¶53 Rather than reviewing facts alleged in Banuelos's
complaint, as a motion to dismiss requires, the majority opinion
slides over that obligation. Instead, it interprets Wis. Stat.
§ 146.83(3f)(b)'s silence in regard to electronic records as a
5 When on a motion to dismiss a majority opinion ignores the
facts alleged in the complaint, it invites a motion for
reconsideration.
6 Banuelos v. Univ. of Wis. Hosps. and Clinics Auth., 2021
WI App 70, ¶¶13, 14, 399 Wis. 2d 568, 966 N.W.2d 78.
3
No. 2020AP1582.pdr
prohibition on charging for those records, notwithstanding that
UW Hospital charged Banuelos's lawyers nothing for health care
records that Ciox provided.7
II. DISCUSSION
A. Standard of Review
¶54 The dispute before us presents as a motion to dismiss.
Whether facts alleged in a complaint are sufficient to state a
claim for relief is a question of law for our independent
review. Townsend, 399 Wis. 2d 599, ¶10. This dispute also
requires us to interpret and apply statutes. These are
additional questions of law that we independently decide.
Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159,
¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
B. Motion to Dismiss
1. Legal Principles
¶55 A motion to dismiss tests the legal sufficiency of the
complaint. Townsend, 399 Wis. 2d 599, ¶10. In order to survive
a motion to dismiss, a complaint must allege facts, which if
true, would entitle the pleader to relief. Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, ¶21, 356 Wis. 2d 665, 849
N.W.2d 693. Although for purposes of the pending motion, we
accept as true all facts well-pleaded and reasonable inferences
therefrom, we cannot add facts to a complaint. Townsend, 399
Wis. 2d 599, ¶10. In addition, we give no deference to a
7 Majority op., ¶1.
4
No. 2020AP1582.pdr
complaint's legal conclusions. Id. Accordingly, I begin with
the factual allegations stated in Banuelos's Complaint.
2. Banuelos's Complaint
a. Facts Found in Banuelos's Complaint
¶56 Her Complaint alleges: "From 2016 to January 23,
2020, all major institutional health care providers, like UW
Health in Wisconsin and their business associates, like Ciox,
were complying with the DHHS guidance and charging a cost-based
fee, $6.50 in the vast majority of cases, upon receipt of a
HITECH[8] electronic medical records request from the patient
with the patient's lawyers designated to receive the records."9
¶57 "On January 23, 2020, a Federal District Court on the
D.C. Circuit issued a Memorandum Opinion in [Ciox Health, LLC v.
Azar, 435 F. Supp. 3d 30 (D.D.C. Jan. 2020)], indicating that
the 2016 DHHS guidance document entitling patients to the cost-
based fee when the medical records were directed to be received
by a third party, like a law firm, was unenforceable."10 After
this federal court decision, UW Hospital and Ciox began
informing patients who had requested electronic health care
records under HITECH and designated receipt by a third-party
that their requests would be fulfilled according to allowable
HITECH is the acronym for Health Information Technology
8
for Economic and Clinical Health Act.
9 Complaint, ¶9.
10 Id., ¶10.
5
No. 2020AP1582.pdr
state costs, not the earlier mandate in the DHHS guidance
document.11
¶58 On February 27, 2020, Banuelos requested copies of her
health care records in electronic format.12 She directed that
the copies be sent to her lawyers.13 Ciox sent the requested
health care records electronically to Banuelos's lawyers.14 Ciox
also included its invoice requesting payment of $109.96 to Ciox
at "P.O. Box 409740, Atlanta, Georgia 30384-9740," with
questions by email directed to "collections@cioxhealth.com."15
b. The Applicable Law
¶59 Banuelos relies on Wis. Stat. § 146.83(3f)(b) for her
claim against UW Hospital that she was charged excessive fees.16
Section 146.83(3f)(b) provides in relevant part:
(b) Except as provided in sub (1f), a health
care provider may charge no more than the total of all
of the following that apply for providing the copies
requested under par. (a) . . . .
¶60 We have interpreted Wis. Stat. § 146.83(3f)(b) in a
prior decision. Townsend, 399 Wis. 2d 599, ¶2. Past
interpretations of a statute become part of our understanding of
11 Id., ¶12.
12 Id., ¶14.
13 Id., ¶15.
14 Id., ¶16.
15Id., ¶17; "Banuelos – Exhibit 3" (attached to the
Complaint and attached to this dissent).
16 Id., ¶22.
6
No. 2020AP1582.pdr
the meaning of the statute. Adams v. Northland Equip. Co.,
Inc., 2014 WI 79, ¶30, 356 Wis. 2d 529, 850 N.W.2d 272; State v.
Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 848.
¶61 In Townsend, we had a claim similar to that set out in
Banuelos's complaint, where ChartSwap provided and charged for
medical records that had been requested from the health care
provider, Milwaukee Radiologists. Townsend, 399 Wis. 2d 599,
¶4. Here, Banuelos's Complaint requested health care records
from UW Hospital and Ciox provided the records and billed for
payment of $109.96, directing that payment be made to Ciox.17
¶62 In Townsend, we concluded that under a plain meaning
interpretation of Wis. Stat. § 146.81(1), "ChartSwap is not a
health care provider." Id., ¶2. We also concluded that Wis.
Stat. § 146.83(3f)(b) regulates only health care providers. Id.Therefore, because ChartSwap was not a health care provider and
§ 146.83(3f)(b) regulated only health care providers,
§ 146.83(3f)(b) did not regulate ChartSwap. Id.
¶63 In parallel with Townsend, Ciox is not a health care
provider because it meets none of the identifications provided
by Wis. Stat. § 146.81(1)(a)–(s). Because Ciox is not a health
care provider, it is not subject to fee regulations in
§ 146.83(3f)(b). Id. Therefore, the payment Banuelos's
attorneys made to Ciox does not come within subsec. (3f)(b).
Smith confirms this conclusion as it explains:
17 Id., ¶¶14, 16, 17.
7
No. 2020AP1582.pdr
[P]laintiff's argument finds no support in the text of
the statute. The statute does not impose liability on
a person who is not a health care provider but who
responds to records requests on behalf of a health
care provider.
Smith, 380 F. Supp. 3d at 842.
¶64 This case differs from Townsend and Smith in that the
health care provider, UW Hospital, was named as the defendant,
rather than naming the entity that provided the records and
charged for their provision. However, Banuelos's Complaint
bases its alleged statutory violation on the Ciox bill and the
payment to Ciox. The Complaint does not make a factual
allegation that UW Hospital billed or collected anything in
regard to the provision of Banuelos's health care records.
¶65 Banuelos's Complaint tries to avoid this problem by
alleging "charges submitted by defendant, UW Hospital and
Clinics Authority, through its business associate, Ciox, to the
plaintiff, Beatriz Banuelos, are not permitted by Wisconsin
Statutes § 146.83(3f)."18 However, Banuelos cites no statutory
language in § 146.83(3f) to support this legal conclusion.
¶66 Wisconsin Stat. § 146.83(3f)(b) regulates health care
providers. It does not regulate business associates of health
care providers. If the legislature chooses to cause health care
providers to incur liability for acts of a business associate,
that is a policy choice the legislature can make by amending the
statute. However, as the statute is now written, it regulates
only health care providers for charges that health care
18 Id., ¶25.
8
No. 2020AP1582.pdr
providers impose. Townsend firmly sets aside Banuelos's claim
because Ciox is not a health care provider and, as her Complaint
alleges, Ciox charged and collected for the records.19 Townsend,
399 Wis. 2d 599, ¶2; Smith, 380 F. Supp. 3d at 842.
¶67 The majority opinion never quotes or analyzes facts
alleged in Banuelos's Complaint. Instead, it sets out facts
that it creates to enable it to get to where it wants to go.
For example, Banuelos's Complaint does not state that UW
Hospital "transmitted . . . an invoice for $109.96" or made a
"charge of $109.96" as the majority opinion states.20 Instead,
her Complaint alleges that Ciox made that charge, and it
attaches the invoice from Ciox showing payment is due to Ciox,
not to UW Hospital. See invoice copy attached to dissent.
¶68 Accordingly, because Banuelos's Complaint fails to
state a claim against UW Hospital that comes within the plain
meaning of Wis. Stat. § 146.83(3f)(b), her Complaint must be
dismissed. Because the majority opinion does not review facts
actually alleged in the Complaint, and instead rewrites
§ 146.83(3f)(b) to make a policy choice that belongs to the
legislature, I respectfully dissent.
III. CONCLUSION
A health care provider is defined in Wis. Stat.
19
§ 146.81(1). Ciox does not fit within any of those persons
listed in subsec. (1)(a)-(s), even when described as a "business
associate" of a health care provider.
20 Majority op., ¶¶8, 9.
9
No. 2020AP1582.pdr
¶69 I conclude that Banuelos's Complaint fails to state a
claim against UW Hospital because it alleges that Ciox, who is
not a health care provider, supplied the health care records and
charged $109.96 for them, payable to Ciox.21 Wisconsin Stat.
§ 146.83(3f)(b), invoked and relied on by the majority opinion,
does not regulate persons who are not health care providers.
Townsend, 399 Wis. 2d 599, ¶14; Smith, 380 F. Supp. 3d at 842.
¶70 Permitting a claim against UW Hospital for charges
made by Ciox for the provision of health care records is not
addressed in Wis. Stat. § 146.83(3f)(b). Whether to permit a
claim against a health care provider for charges made by a third
party for the provision of health care records, whether the
third party is denominated a "conduit," a "business associate"
or something else, is a policy choice better left to the
legislature. The charges Banuelos's Complaint alleges Ciox made
here are not contrary to § 146.83(3f)(b); therefore, the
Complaint fails to state a claim against UW Hospital and must be
dismissed.
¶71 The majority opinion ignores material facts that are
alleged in Banuelos's Complaint and the effect of Townsend on
the pending motion to dismiss, given those facts. Accordingly,
I respectfully dissent.
¶72 Although I conclude the Complaint should be dismissed
for the reasons stated above, I agree with Justice Rebecca
Grassl Bradley’s statutory interpretation of Wis. Stat.
Id., ¶¶16, 17; Banuelos – Exhibit 3 (attached to the
21
Complaint).
10
No. 2020AP1582.pdr
§ 146.83(3f) as applied to "health care providers." Therefore,
I join her dissent.
11
No. 2020AP1582.pdr
12
No. 2020AP1582.rgb
¶73 REBECCA GRASSL BRADLEY, J. (dissenting). Beatriz
Banuelos requested electronic health care records from her
health care provider, University of Wisconsin Hospitals and
Clinics Authority (UW Health), which provided the records
through Ciox Health, LLC (Ciox), a service provider. Ciox
charged Banuelos $109.96 for providing the requested records.
Banuelos sued UW Health, alleging it had no statutory authority
under Wis. Stat. § 146.83(3f) (2021–22)1 to charge for the
provision of electronic records. Misinterpreting the statutory
text, the majority agrees with Banuelos and concludes Wis. Stat.
§ 146.83(3f) prohibits such charges. The majority is wrong.
Wisconsin Stat. § 146.83(3f) is silent as to the amount health
care providers may charge for the provision of electronic health
care records. The absence of any state regulation of such fees
means providers retain the freedom to charge them, subject only
to federal law.
I. The Statutory Text
[T]he construction must be made upon the entire
instrument, and not merely upon disjointed parts of
it.
Herbert Broom, A Selection of Legal Maxims 440 (Joseph Gerald
Pease & Herbert Chitty eds., 8th ed. 1911).
¶74 The majority misconstrues Wis. Stat. § 146.83(3f) as
an authorization of private economic activity, namely, charging
for the provision of health care records. Like the court of
1 All subsequent references to the Wisconsin Statutes are to
the 2021–22 version unless otherwise indicated.
1
No. 2020AP1582.rgb
appeals, the majority concludes: "[§ 146.83(3f)] does not permit
charges for copies of electronic records because the statute
does not enumerate electronic formats as one of the three
formats for which a health care provider may charge a fee," and
"there is no provision in the text permitting the charge of fees
for copies in formats for which the legislature did not
expressly authorize a fee." Majority op. ¶¶24, 22. In the
absence of constitutionally legitimate regulation, people do not
require the State's permission to engage in economic activity.
Because the applicable statute does not impose a statutory cap
on charges for providing electronic health records, the provider
may charge whatever it chooses——subject to federal law, which
does impose a limit. 42 U.S.C. § 17935(e)(3) (2012).
¶75 Wisconsin Stat. § 146.83(3f) requires health care
providers to provide health care records upon request. Wis.
Stat. § 146.83(3f)(a). The statute imposes caps on the fees
providers may charge for providing records in particular forms
including paper, microfiche, and x-ray prints. Wis. Stat.
§ 146.83(3f)(b). For reference, the statute provides:
(a) [I]f a person requests copies of a patient's
health care records, provides informed consent,
and pays the applicable fees under par. (b), the
health care provider shall provide the person
making the request copies of the requested
records.
(b) [A] health care provider may charge no more than
the total of all of the following that apply for
providing the copies requested under par. (a):
1. For paper copies: $1 per page for the first
25 pages; 75 cents per page for pages 26 to
50; 50 cents per page for pages 51 to 100;
2
No. 2020AP1582.rgb
and 30 cents per page for pages 101 and
above.
2. For microfiche or microfilm copies, $1.50
per page.
3. For a print of an X-ray, $10 per image.
4. If the requester is not the patient or a
person authorized by the patient, for
certification of copies, a single $8 charge.
5. If the requester is not the patient or a
person authorized by the patient, a single
retrieval fee of $20 for all copies
requested.
6. Actual shipping costs and any applicable
taxes.
Paragraphs (a) and (b) must be read as a whole, and in the
context of surrounding statutes. State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681
N.W.2d 110.
¶76 Under paragraph (a), health care providers "shall"
provide copies of a patient's health care records to each person
who requests them, with the patient's informed consent. The
word "shall" is mandatory. Heritage Farms, Inc. v. Markel 8
Ins. Co. (Heritage Farms II), 2012 WI 26, ¶32, 339 Wis. 2d 125,
810 N.W.2d 465 ("[W]e presume that the word 'shall' is
mandatory"); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 112 (2012) (Mandatory/Permissive
Canon) ("The traditional, commonly repeated rule is that shall
is mandatory and may is permissive"). Compliance with this
provision necessarily imposes costs on the provider. In 2011,
for instance, the average request for health care records
"total[ed] 61 pages in length" and cost providers "an average"
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of $62.22 in "direct processing." Legislative Fiscal Bureau,
Joint Fin. Cmte., Paper #367 (May 18, 2011) at 6. The statute
requires health care providers to shoulder a substantial cost;
the total fee that can be charged under paragraph (b) for an
average request of 61 pages equals only $36.35. Id. The
statutory scheme reflects a legislative balancing of patients'
interest in guaranteed and affordable access to their health
care records and the health care provider's interest in
recouping the costs of providing them.
¶77 Nothing in paragraph (a) requires health care
providers to give requesters any health care records in
electronic form. The statutory limits on fees under paragraph
(b) apply only to requests for the form of records expressly
listed in paragraph (b)(1–6). Health care records in electronic
form are not listed in paragraph (b); therefore, electronic
health care records are not subject to any cap on fees the
provider may charge. Requests for electronic health care
records fall beyond the scope of § 146.83(3f) altogether because
records in electronic form are not mentioned at all. The
majority converts the legislature's silence with regard to
electronic health care records into a mandate that health care
providers provide them at no charge. Had the legislature wished
to impose such an obligation on health care providers, it would
have done so explicitly. "[T]he legislature knows how to write
a statute accomplishing the work" the majority would have
§ 146.83(3f) perform. Teigen v. Wisconsin Elections Comm'n,
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2022 WI 64, ¶49, 403 Wis. 2d 607, 976 N.W.2d 519 (citing State
v. Yakich, 2022 WI 8, ¶26, 400 Wis. 2d 549, 970 N.W.2d 12).
¶78 Although the majority claims both paragraphs (a) and
(b) are "important" to its analysis and purports to read those
paragraphs in their proper context, the majority does not
consider Wis. Stat. § 146.83(3f) as a whole text. Majority op.,
¶¶17, 18. The majority commits an interpretive fault perhaps
"more common" than any other. Scalia & Garner, Reading Law 167.
As we have stated in countless cases, statutory text may not be
read in isolation. See, e.g., State ex rel. Zignego v.
Wisconsin Elections Comm'n, 2021 WI 32, ¶12, 396 Wis. 2d 391,
957 N.W.2d 208 ("When interpreting statutes, we focus primarily
on the language of the statute, looking as well to its statutory
context and structure"); see also Stroede v. Soc'y Ins. & R.R.
Station, LLC, 2021 WI 43, ¶11, 397 Wis. 2d 17, 959 N.W.2d 305("[Statutory] language is 'interpreted in the context in which
it is used, not in isolation but as part of a whole.'") (quoting
Kalal, 271 Wis. 2d 633, ¶46); Piper v. Jones Dairy Farm, 2020 WI
28, ¶27, 390 Wis. 2d 762, 940 N.W.2d 701 ("As with statutory
interpretation, we interpret the language of a regulation in the
context in which it is used, 'not in isolation but as part of a
whole; in relation to the language of surrounding or closely-
related [regulations]'") (citing Williams v. Integrated Cmty.
Servs., Inc., 2007 WI App 159, ¶12, 303 Wis. 2d 697, 736 N.W.2d
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226) (quoting Kalal, 271 Wis. 2d 633, ¶46).2 The majority
opinion represents another failure to apply the whole-text canon
correctly. See, e.g., Zignego, 2021 WI 32, ¶52 (Rebecca Grassl
Bradley, J., dissenting).
¶79 The majority fails to read paragraph (b) in the
context of paragraph (a). It misconstrues the portion of
paragraph (b) under which health care providers "may charge no
more than the total of all of the following that apply for
providing the copies requested." Majority op., ¶22 (quoting
Wis. Stat. § 146.83(3f)(b)). The majority translates this
language to mean "a health care provider may charge up to the
rates prescribed in the statute for furnishing copies of paper
records, microfiche or microfilm records, or x-rays." Id.Because the majority "observe[s] that there is no provision in
the text permitting the charge of fees for copies in formats for
which the legislature did not expressly authorize a fee," it
concludes Wis. Stat. § 146.83(3f) "does not permit charges for
copies of electronic records[.]" Id., ¶24 (emphasis added).
The majority badly misreads the statute.
¶80 Interpreting Wis. Stat. § 146.83(3f) as an
authorization of certain charges, the majority incorrectly
concludes paragraph (b) applies to all requests for health care
The United States Supreme Court has espoused the same
2
principle. See Panama Ref. Co. v. Ryan, 293 U.S. 388, 439
(1935) (Cardozo, J., dissenting) ("[T]he meaning of a statute is
to be looked for, not in any single section, but in all the
parts together and in their relation to the end in view"); Davis
v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)
("[S]tatutory language cannot be construed in a vacuum").
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records, whatever the form. As explained above, § 146.83(3f)
does not authorize any activity; rather, it limits the amounts
health care providers may charge for delivering only those
records requested in the particular forms listed in paragraph
(b). Paragraph (b) regulates economic activity by capping fees
for records requested in particular formats, and electronic
records are not among them. Because this statute does not apply
to electronic health care records, the fees charged by health
care providers for their provision have no limit under
§ 146.83(3f).
¶81 Because the majority "observe[s] that there is no
provision in the text permitting the charge of fees for copies
in formats for which the legislature did not expressly authorize
a fee," it concludes Wis. Stat. § 146.83(3f) "does not permit
charges for copies of electronic records[.]" Majority op.,
¶¶22, 24. The majority converts statutory silence into a
statutory prohibition, at the expense of fundamental freedom.
As amicus Wisconsin Civil Justice Council, Inc. put it, "[i]n a
free society, private behavior is allowed unless prohibited by
law. Free people do not need the government's permission before
engaging in private conduct." Wis. Civ. Just. Council Br. at 6.
II. First Principles
¶82 Liberty is not provided by government; liberty
preexists government. It is not a gift from the
sovereign; it is our natural birthright. Fixed.
Innate. Unalienable.
Patel v. Texas Dep't of Licensing & Regul., 469 S.W.3d 69, 92–93
(Tex. 2015) (Willet, J., concurring). The Founders fought a
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revolution to reclaim the people's liberty, and established our
republican form of government to secure this birthright freedom:
We hold these truths to be self-evident, that all Men
are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among
these are Life, Liberty, and the Pursuit of Happiness—
That to secure these Rights, Governments are
instituted among Men, deriving their just Powers from
the Consent of the Governed.
The Declaration of Independence para. 2 (U.S. 1776) (emphasis
added). The Wisconsin Constitution enshrines liberty in its
very first provision:
All people are born equally free and independent, and
have certain inherent rights; among these are life,
liberty and the pursuit of happiness; to secure these
rights, governments are instituted, deriving their
just powers from the consent of the governed.
Wis. Const. art. I, § 1 (emphasis added). "Too much dignity
cannot well be given to that declaration." State v. Redmon, 134
Wis. 89, 101, 114 N.W. 137 (1907). "An inherent right to liberty
means all people are born with it; the government does not
bestow it upon us and it may not infringe it." Porter v. State,
2018 WI 79, ¶52, 382 Wis. 2d 697, 913 N.W.2d 842 (Rebecca Grassl
Bradley & Kelly, JJ., dissenting).
¶83 John Locke, whose works influenced the Framers, built
his theories of government on the immutable principle that all
"are born free," and therefore, "[a]ll government is limited in
its powers and exists only by the consent of the governed."
Robert A. Goldwin, John Locke in History of Political Philosophy
476 (Leo Strauss & Joseph Cropsey, eds., 3d ed. 1987).
The power a man has in the state of nature "of doing
whatsoever he thought fit for the preservation of
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himself and the rest of mankind, he gives up," to a
significant extent, "to be regulated by laws made by
the society."
McDonald v. City of Chicago, Ill., 561 U.S. 742, 892 (2010)
(Stevens, J., dissenting) (quoting John Locke, Second Treatise
of Civil Government § 129, 64 (J. Gough ed., 1947)) (emphasis
added). "Once a government is formed, however, it cannot be
given 'a power to destroy that which every one designs to
secure'; it cannot legitimately 'endeavour to take away, and
destroy the property of the people,' or exercise 'an absolute
power over [their] lives, liberties, and estates.'" Carpenter
v. United States, 585 U.S. __, 138 S. Ct. 2206, 2239 (2018)
(Thomas, J., dissenting) (quoting Second Treatise of Civil
Government § 222 (1690)). If the legislature will restrict
liberty, it must do so expressly, in written laws. The
government possesses no authority to bind the people with
silence.
¶84 The majority flips this first principle on its head,
equating silence with prohibition, and implying we are
restrained until made free. The majority's extraordinary
misunderstanding of basic founding principles is anathema to our
republican form of government, under which the people consent to
be governed by written law, not haunted by specters:
The liberty of man, in society, is to be under no
other legislative power, but that established, by
consent, in the commonwealth; nor under the dominion
of any will, or restraint of any law, but what that
legislative shall enact, according to the trust put in
it.
John Locke, Two Treatises on Government 205 (J. Bumpus ed. 1821)
(emphasis added).
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[A] system of laws, is alone calculated to maintain
civil liberty, which leaves the subject entire master
of his own conduct, except in those points wherein the
public good requires some direction or restraint.
1 W. Blackstone, Commentaries on the Laws of England, 121–122
(1769) (emphasis added). American liberty means the people may
order their lives as they wish, subject only to the restraints
imposed by written law enacted with the consent of the governed—
—through their elected legislative representatives:
By liberty we mean the power, which a man has to act
as he thinks fit, where no law restrains him; it may
therefore be called a mans right over his own actions.
1 T. Rutherforth, Institutes of Natural Law 146 (1754) (emphasis
added). The people consent to be governed by written law, but
beyond those restraints they retain absolute freedom:
[I]n Society, every Man parts with a Small Share of
his natural Liberty, or lodges it in the publick
Stock, that he may possess the Remainder without
Controul.
Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1
(emphasis added).
¶85 The majority transforms legislative silence into an
unwritten, omnipresent restraint. The logical extension of this
remarkable misconception of democracy consigns the people into
the servitude of their master——government——a regime overthrown
in America nearly 250 years ago. According to the majority,
unless the master expressly gives the people permission to do
something, they may not act. This turns democracy upside down.
It is tyranny.
¶86 To the extent the legislature is silent, the people
retain their inherent, unfettered freedom. Wisconsin Stat.
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§ 146.83(3f) says nothing about charges for the provision of
electronic health care records. In the absence of state
regulation of such fees, health care providers retain the
freedom to charge whatever they see fit, subject to any limits
imposed by federal law.
III. Statutory History
¶87 The history of Wis. Stat. § 146.83(3f) reinforces this
plain meaning analysis. "Statutory history, which involves
comparing the statute with its prior versions, may also be used
as part of plain meaning analysis." Brey v. State Farm Mut.
Auto. Ins. Co., 2022 WI 7, ¶20, 400 Wis. 2d 417, 970 N.W.2d 1(internal quotation marks omitted) (quoting James v. Heinrich,
2021 WI 58, ¶26, 397 Wis. 2d 516, 960 N.W.2d 350). As the
majority notes, the revisions made to § 146.83 (2009–10) in 2011
are most relevant to resolving this dispute. These revisions
must be interpreted in light of the changes to federal law that
occurred shortly before § 146.83 was amended.
¶88 In 2009, two years before the legislature revised
§ 146.83, the United States Congress passed the Health
Information Technology for Economic and Clinical Health (HITECH)
Act as part of the American Recovery and Reinvestment Act of
2009 (ARRA), an omnibus stimulus bill ostensibly passed to allay
the nation's financial crisis. American Recovery and
Reinvestment Act of 2009, PL 11-5, 123 Stat. 115, 226 (Feb. 17,
2009). Taking effect in February 2010, the HITECH Act sought to
promote a "nationwide health information technology
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infrastructure" allowing "for the electronic use and exchange of
information[.]" Id. at 230.
¶89 Prior to the passage of the HITECH Act "many technical
barriers still exist[ed]" preventing the widespread adoption of
electronic health record systems. Kalle Deyette, Hitech Act:
Building an Infrastructure for Health Information Organizations
and A New Health Care Delivery System, 8 St. Louis U.J. Health
L. & Pol'y 375, 386 (2015). Such systems were especially
uncommon "within small practices" because no software "trusted
by providers" and capable of "meeting [small practices'] needs"
existed. Id. By and large, designers of electronic record
systems "focused on the needs of large provider systems and did
not address the needs of small, office-based practices." Id. at
387. "In fact, some of the larger [electronic health records]
systems, such as EPIC, [would] not license to small community
hospitals, claiming these hospitals may not [have had] the
resources to run the system properly." Id. This left small
hospitals with only one option: "contracting with larger
hospitals to sublicense and facilitate its [electronic health
record] system." Id. The problems extended beyond small
practices. Id. Medium practices also "implemented expensive
[electronic health records systems] that did not perform
critical functions of their practice, such as clinical
management, and did not address their patients' diverse needs,
such as mental health issues." Id. Throughout the country,
there was "an overall lack of knowledge, choice, and product
variation in [electronic health records] systems, which [] left
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providers with expensive systems that [were] resource-intensive"
and frequently incapable of fulfilling "the actual objectives of
[electronic health records systems]." Id.
¶90 The HITECH Act allocated hundreds of millions of
dollars "to support regional or sub-national efforts to
implement" electronic "health information exchanges." Id. at
405 (2015). The HITECH Act's ultimate goal was to enable "each
person in the United States" to obtain accurate, private, and
secure electronic health records. 123 Stat. 115 at 231.
¶91 To effectuate that goal, Congress enacted mechanisms
for individuals to obtain and review their health records
directly. 123 Stat. 115 at 266, 268. The HITECH Act provides:
(e) ACCESS TO CERTAIN INFORMATION IN ELECTRONIC
FORMAT.—In applying section 164.524 of title 45,
Code of Federal Regulations, in the case that a
covered entity uses or maintains an electronic
health record with respect to protected health
information of an individual[.]
(1) [T]he individual shall have a right to obtain
from such covered entity a copy of such
information in an electronic format and, if the
individual chooses, to direct the covered entity
to transmit such copy directly to an entity or
person designated by the individual, provided
that any such choice is clear, conspicuous, and
specific[.]
42 U.S.C. § 17935(e)(1) (2012). In addition to establishing the
right to review an individual's health records, Congress capped
allowable charges. 123 Stat 115, 268 (Feb. 17, 2009). Under
the HITECH Act, a health care provider may, when asked to
provide electronic records, charge no more than its "labor costs
in responding to the request":
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(3) [A]ny fee that the covered entity may impose for
providing such individual with a copy of such
information (or a summary or explanation of such
information) if such copy (or summary or
explanation) is in an electronic form shall not
be greater than the entity's labor costs in
responding to the request for the copy (or
summary or explanation).
42 U.S.C. § 17935(e)(3) (2012).
¶92 Against this backdrop, the Wisconsin legislature
revised Wis. Stat. § 146.83 in 2011. For reference, below is a
side-by-side comparison of the relevant provisions of § 146.83
as they appeared both prior to and after the 2011 amendments.3
On the left side is the (2009–10) version of the statute, and on
the right are the changes the legislature made. The struck
through portions signify legislative deletions. The underlined
portions signify legislative additions. All revisions made in
2011 remain in effect.
Wis. Stat. § 146.83(1h)(b) Wis. Stat. § 146.83(3f)(b)
(2009–10) (2021–22)
(b) . . . [A] health care (b) . . . [A] health care
provider may charge no provider may charge no
more than the total of all more than the total of all
of the following that of the following that
apply for providing copies apply for providing copies
requested under par. (a): requested under par. (a):
1. For paper copies, 35 cents 1. For paper copies, 35 cents
per page. per page.: $1 per page for
The court of appeals provided a similar side-by-side
3
representation of these changes, but its chart, at least as it
appears on Westlaw, is inaccurate. The statutory headings are
flipped, but the statutory text is not, causing the table to
show the (2019-20) version under the (2009–10) version, and
vice-versa.
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the first 25 pages; 75
cents per page for pages
26 to 50; 50 cents per
page for pages 51 to 100;
and 30 cents per page for
pages 101 and above.
2. For microfiche or 2. For microfiche or
microfilm copies, $1.25 microfilm copies, $1.25
per page. $1.50 per page.
3. For a print of an X-ray, 3. For a print of an X-ray,
$10 per image. $10 per image.
3m. For providing copies in 3m. For providing copies in
digital or electronic digital or electronic
format, a charge for all format, a charge for all
copies requested. copies requested.
4. For certification of 4. For certification of
copies, $5. copies, $5.
5. For processing and 5. For processing and
handling, a single $15 handling, a single $15
charge for all copies charge for all copies
requested. requested.
4. If the requester is not
the patient or a person
authorized by the patient,
for certification of
copies, a single $8
charge.
5. If the requester is not
the patient or a person
authorized by the patient,
a single retrieval fee of
$20 for all copies
requested.
6. Actual shipping costs. 6. Actual shipping costs.
7. If the requester requests 7. If the requester requests
delivery of the copies delivery of the copies
within 7 or fewer days within 7 or fewer days
after making a request for after making a request for
copies, and the health
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copies, and the health care provider delivers the
care provider delivers the copies within that time, a
copies within that time, a fee equal to 10 percent of
fee equal to 10 percent of the total fees that may be
the total fees that may be charged under subds. 1. to
charged under subds. 1. to 6.
6.
¶93 The 2009–10 version of Wis. Stat. § 146.83 specified
no cap on fees health care providers could charge for the
provision of electronic records. Originally, the legislature
imposed a $5 cap on such charges in § 146.83(1h)(b)3m. (2009–
10). Governor Jim Doyle, Veto Message § D.11, at 37 (June 29,
2009) (responding to Assembly Bill 75 (2009)). Using his line-
item veto power, then-Governor Doyle removed that cap from the
statute. Id. The enacted law required health care providers to
provide electronic records upon request but without any limit on
the fees they could charge.
¶94 As shown above, the legislature eventually removed
subsection 3m. from Wis. Stat. § 146.83. Currently, the statute
contains no reference to electronic health care records
whatsoever. The HITECH Act overrode Wisconsin's limitless fee
provision, obviating the need to address charges for electronic
health care records. Removing the language regarding charges
for such records from the statute eliminated any tension between
Wisconsin law and federal law by conforming state statutes to
the federal fee cap. From this, the majority reads into the
statute an implicit prohibition on charging for electronic
health care records at all.
¶95 Conspicuously missing from the majority opinion, as
well as the court of appeals opinion, is any meaningful
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discussion of the context in which the 2011 legislative
amendments occurred. The majority scarcely mentions the HITECH
Act at all.4 The majority's entire analysis rests on the absence
of legislative "permission" for health care providers to charge
for the provision of electronic health records. Of course, the
legislature hasn't given lawyers, plumbers, or electricians
permission to charge for their services either, despite the
existence of laws governing those trades. It would be absurd to
suggest any provider of services or goods must provide them for
free, but the majority doesn't explain why it decrees that
health care providers must do so.
IV. Conclusion
¶96 Our system of ordered liberty under the rule of law
has been analogized to the Sears Tower:5 although inside it
people move freely, their movement is necessarily restrained by
the building's structure——its walls, its floors, its elevators.
See Randy Barnett, The Structure of Liberty: Justice and the
Rule of Law 1–3 (1998). The majority fills a statute's silence
with a prohibition, surrounding economic actors——in this case,
health care providers——with invisible restraints on their
freedom. The majority establishes a dangerous precedent that
violates first principles and imperils liberty. People who live
4 See Majority op., ¶28 n.11.
5 "Sears Tower" refers to the 110 story skyscraper in
Chicago now named Willis Tower. The Making of an American Icon,
Willis Tower, https://www.willistower.com/about (last visited
March 11, 2023).
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in freedom may not be transformed into mimes bound by invisible
chains. In the absence of written law, we are free. Because
the fee caps imposed in Wis. Stat. § 146.83(3f) do not encompass
electronic health care records, health care providers are free
to charge whatever they choose, subject only to federal law. I
respectfully dissent.
¶97 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this dissent.
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1