PUBLISHED OPINION
Case No.: 95-0792-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROGER K. ALLEN,
Defendant-Appellant.†
Submitted on Briefs: December 29, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: February 21, 1996
Opinion Filed: February
21, 1996
Source of APPEAL Appeal from judgments
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If
"Special", JUDGE: DENNIS J. BARRY
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Jeffrey W. Jensen of Law Offices of
Jeffrey W. Jensen of Milwaukee.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Barbara
Oswald, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED February
21, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0792-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ROGER
K. ALLEN,
Defendant-Appellant.
APPEAL
from judgments of the circuit court for Racine County: DENNIS J. BARRY and EARL D. MORTON, Judges.[1] Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Roger K. Allen appeals from judgments of
conviction for public assistance fraud pursuant to § 49.12(1) and (6), Stats., and food stamp fraud pursuant
to § 49.127(2m) and (8)(a)2, Stats. In both instances, Allen was convicted as a
party to the crime. The convictions
resulted from Allen's pleas of no contest to the charges following the trial
court's denial of his motion to suppress evidence of his medical billing
records obtained from a local hospital by investigators with the Racine County
Sheriff's Department.
On
appeal, Allen contends that his billing records were confidential and
privileged under §§ 146.82(1) and 905.04(2), Stats.,
and could not be disclosed without his consent. We conclude that the billing records were properly disclosed
under § 146.82(2)(a)3 and accordingly affirm the judgments of conviction.
Background
The
facts of this case are undisputed. An
employee in the patient financial services department at St. Luke's Hospital in
Racine, Wisconsin, informed the Racine County Department of Human Services
(DHS) that a man, later determined to be Allen, had been coming to the hospital
for treatment using two different names.
At that time, certain of Allen's hospital bills were being paid under the
medical assistance provisions of Title 19.
However, at that same time, Allen, under the name of “Roger Roz,” was
also receiving treatment paid by a worker's compensation carrier.
The
DHS relayed this information to the Racine County Sheriff's Department. Investigators from the department's Special
Investigative Unit were sent to St. Luke's to look into the matter. The investigators interviewed a St. Luke's
patient services representative who provided the investigators with certain
information from Allen's billing records.
These records revealed that Allen had sought and received medical
assistance for his hospital treatment under the name “Roger Allen.” The investigators also learned that Allen,
using the name “Roger Roz,” was also receiving treatment paid by a worker's
compensation carrier. The St. Luke's
representative provided the investigators with the name of Allen's
employer. The investigators did not
receive any detailed medical treatment information. The St. Luke's representative provided this information to the
investigators without Allen's knowledge or consent.
Based
on this information, the investigators later contacted Allen's previous
employer and insurers to obtain more detailed information regarding his
employment history and learned that Allen had received a worker's compensation
settlement award.
The
investigators also obtained Allen's DHS records, revealing the public
assistance benefits he and his family had sought and received. These records established that Allen and his
wife, Mary, applied for public assistance on July 10, 1991, and each signed a
notice of responsibility acknowledging that they were to report any changes in
income and assets or any circumstances that could affect their eligibility for
public assistance. On March 27 and
September 11, 1992, the Allens filed review applications for public assistance
which failed to report the receipt of a $17,197 worker's compensation
settlement issued to them in December 1991.
On
March 23, 1993, the Allens filed a further application with DHS that still did
not report the worker's compensation settlement. This application further represented that Mary had not worked
since December 1992 and that Allen had not worked since the summer of
1992. In fact, Allen had been employed
with a company under the name of “Roger Roz” from October 26, 1992, to December
14, 1992, and had received worker's compensation payments from the company's
insurer beginning in December 1992.
Those payments continued until July 1993. The Allens received various public and medical assistance
benefits as a result of the information that was disclosed on the
applications.
On
March 1, 1994, the State charged Allen with one count of felony welfare fraud,
in violation of § 49.12(6), Stats.,
and one count of food stamp fraud for failing to report a change in income, in
violation of § 49.127(2m), Stats.,
both as a party to the crime under § 939.05, Stats.[2] Allen entered pleas of not guilty to the
charges alleged in the information. He later filed a motion to suppress the
materials directly or indirectly procured from St. Luke's by the investigators
on the grounds that his billing records were confidential and privileged
information.
On
August 24, 1994, the trial court denied Allen's motion to suppress the
evidence. Allen then changed his pleas
to no contest. The trial court
sentenced Allen to a three-year prison sentence on the food stamp fraud charge,
consecutive to another sentence which Allen was already serving. The court also imposed a consecutive but
stayed seven-year sentence with ten years' probation on the public assistance
fraud charge. Allen appeals.
Discussion
Allen
argues that the information disclosed by the St. Luke's representative to the
sheriff's department investigators was privileged under the confidentiality
provisions of §§ 146.82 and 905.04(2), Stats.,
and therefore was inadmissible as evidence against him.
The
State first responds that § 46.25(2m), Stats.,
allowed DHS to request the information from St. Luke's. This statute provides:
The department [of health and social services] may
request from any person any information it determines appropriate and necessary
for the administration of this section, ss. 49.19, 49.46, 49.468 and 49.47 and
programs carrying out the purposes of 7 USC 2011 to 2029.
We
agree with the State that this statute clearly authorizes DHS to seek
information necessary to the administration of the public assistance
program. From this, we think it
logically follows (although the statute is not as explicit) that the person or
agency to whom the request is directed is also authorized to release it. Since the information sought by DHS from St.
Luke's in this case related to DHS administration of the public assistance
program, we conclude that the request and the disclosure were proper.[3]
However,
§ 46.25(2m), Stats., does not
address the different and higher question posed in this case—whether the
information obtained under that statute may be admitted as evidence over an
objection premised on privilege in a criminal proceeding. In fact, the statute says nothing about
confidentiality or privilege. Thus, we
must look elsewhere for the answer to this question. We conclude that the answer lies in an analysis of two other
statutes: § 146.82, Stats., governing confidentiality of
patient health care records and § 905.04(2), Stats.,
governing privileged communications between a patient and a health care
provider.
The
construction of a statute and its application to a set of facts presents a
question of law for our independent review.
See City of Muskego v. Godec, 167 Wis.2d 536, 545,
482 N.W.2d 79, 83 (1992). A general
rule of statutory construction is that a specific statute takes precedence over
a general statute. See id.
at 546, 482 N.W.2d at 83.
Section
146.82(1), Stats., covers patient
health care records and, subject to certain exceptions, deems such records
“confidential.”[4] Section 905.04(2), Stats., covers communications between a patient and a health
care provider and, subject to certain exceptions, accords the patient a
privilege to refuse to disclose such “confidential communications.”[5] In many instances, the data covered by these
two statutes will overlap because a patient's health care record under § 146.82
may often include a record of a confidential communication between the patient
and a health care provider under § 905.04.
Therefore, although §§ 146.82 and 905.04 are recited in different
chapters of the statutes, they both address the confidential or privileged
status of health care information and communications.
When
multiple statutes address the same subject matter, we properly read the two
statutes in pari materia such that both will be operative. See Schinner v. Schinner,
143 Wis.2d 81, 91, 420 N.W.2d 381, 385 (Ct. App. 1988). If the potential for conflict between the
statutes is present, we will read the statutes to avoid such conflict if a
reasonable construction so permits. Wyss
v. Albee, 193 Wis.2d 101, 110, 532 N.W.2d 444, 447 (1995).
Section
905.04(4), Stats., recites the
exceptions to the privilege which otherwise pertain to communications between a
patient and a health care provider.
These exceptions do not include the release of information for billing,
collection or payment of claims purposes.
However,
§ 146.82(2), Stats., does provide
such an exception.
(2) Access without informed consent. (a)
Notwithstanding sub. (1), patient health care records shall be released
upon request without informed consent in the following circumstances:
¼.
3. To the extent that the records are needed
for billing, collection or payment of claims.
Here,
the testimony at the suppression hearing established that St. Luke's billings
for Allen's medical services were paid by Title 19 medical assistance while, at
the same time, its billings for other of Allen's medical services were paid by
worker's compensation under Allen's fictitious name, “Roz.” Since Allen had successfully obtained
payment of his bills by medical assistance, we conclude that DHS was authorized
by this statutory exception to request St. Luke's records when the propriety of
the payments was called into question by the information initially received
from St. Luke's.[6] Pursuant to this statutory exception, St.
Luke's was not required to first obtain Allen's consent before it could release
the billing information.
In
summary, even though the release of Allen's patient care billing records was
not authorized by any exception in § 905.04(4), Stats., it was specifically authorized by the exception in §
146.82(2)(a)3, Stats. Reading the two statutes in pari materia,
they represent a collective statement as to the reach and limits of the
confidentiality and privilege which attach to such records or
communications. Reading the statutes in
this fashion, we uphold both and do violence to neither. In making this holding, we bear in mind that
the privilege set out in § 905.04 is purely statutory. See Steinberg v. Jensen,
194 Wis.2d 440, 459, 534 N.W.2d 361, 368 (1995). Evidentiary privileges interfere with the trial court's search
for the truth and must be strictly construed.
State v. Locke, 177 Wis.2d 590, 602, 502 N.W.2d 891, 896 (Ct.
App. 1993).
We
see Godec to be in accord with our analysis, although the supreme
court's opinion there did not analyze the two statutes to the degree we have
here. Godec argued on privilege grounds
that an alcohol content blood test, obtained for diagnostic purposes, could not
be used against him in a drunk driving prosecution. Godec, 167 Wis.2d at 539, 482 N.W.2d at 80. Godec relied on the patient care records
provisions of § 146.82, Stats.,
which contains no exception for intoxication tests. However, the supreme court approved the use of the evidence, citing
§ 905.04(4)(f), Stats., which
recognizes a specific exception for intoxication tests. While here we have concluded that § 146.82,
not § 905.04, is the applicable statute, we, like the supreme court in Godec,
properly consider the possible effect of both statutes on the question.
We
conclude that St. Luke's properly disclosed its “billing, collection or payment
of claims” records pursuant to § 146.82(2)(a)3, Stats. Therefore, the
trial court properly denied Allen's motion to suppress the records pursuant to
this statute.[7]
By
the Court.—Judgments affirmed.
[1] The substantive
ruling which we review in this case was made by the Honorable Earl D.
Morton. The sentencing was conducted by
the Honorable Dennis J. Barry. The
Honorable Stephen A. Simanek signed the judgments on Judge Barry's behalf.
[2] Both Allen and
his wife were charged; however, the trial court granted a motion to sever their
trials.
[3] We stress that §
46.25(2m), Stats., does not give
DHS carte blanche authority to request all medical records of an
applicant. Rather, the requested
records must relate to the “appropriate and necessary” administration of the
relevant statutes.
[4] Section
146.82(1), Stats., provides:
Confidentiality of patient health care records. (1) Confidentiality. All patient health care records shall remain
confidential. Patient health care
records may be released only to the persons designated in this section or to
other persons with the informed consent of the patient or of a person
authorized by the patient. This
subsection does not prohibit reports made in compliance with s. 146.995 or
testimony authorized under s. 905.04(4)(h).
[5] Section
905.04(2), Stats., provides in
part:
General rule of privilege. A patient has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made or information obtained or disseminated for
purposes of diagnosis or treatment of the patient's physical, mental or
emotional condition ¼.
[6] We do not read
Allen's appellate brief to challenge the initial telephone contact of DHS by
St. Luke's. Rather, his challenge is to
the information disclosed by St. Luke's to the investigators who responded to
the telephone contact.
[7] Because we have
concluded that Allen's hospital billing records were properly disclosed under
the provisions of § 146.82(2)(a)3, Stats.,
we do not address the State's further arguments that: (1) pursuant to Wis. Adm.
Code § HSS 104.01(3),
medical assistance recipients waive the physician-patient privilege; and (2)
Allen did not reasonably expect that the billing information would be
confidential under § 905.04, Stats.