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146.38(5) (5) This section does not apply to s. 146.56.
146.38 Annotation The conclusions of a hospital governing body, based on records and conclusions of peer review committees, were not privileged under this section. Good Samaritan Hospital v. Moroney, 123 Wis. 2d 89, 365 N.W.2d 887 (Ct. App. 1984).
146.38 Annotation The methodology for determining privileged records under sub. (2) is outlined. Franzen v. Children's Hospital, 169 Wis. 2d 366, 485 N.W.2d 603 (Ct. App. 1992).
146.38 Annotation The methodology for determining privileged communications under sub. (1m) is discussed. Mallon v. Campbell, 178 Wis. 2d 278, 504 N.W.2d 357 (Ct. App. 1993).
146.38 Annotation Because this section does not provide for the loss of confidentiality due to disclosure to third parties, no waiver exists under this section. Ollman v. Health Care Liability Ins. Co. 178 Wis. 2d 648, 505 N.W.2d 399 (Ct. App. 1993).
146.38 Annotation Statistical data regarding a hospital's rates of infection for postoperative patients qualifies as a report in statistical form under sub. (3) (d) and was subject to discovery. A court need not conduct an in camera inspection to determine if material sought may be released when there is a request for information that on its face is clearly protected by this section. Braverman v. Columbia Hospital, Inc. 2001 WI App 106, 244 Wis. 2d 98, 629 N.W.2d 66, 00-0901.
146.38 Annotation The department of health and family services is a person subject to restrictions under sub. (1m) regarding the release of information. Braverman v. Columbia Hospital, Inc. 2001 WI App 106, 244 Wis. 2d 98, 629 N.W.2d 66, 00-0901.
146.38 Annotation Site reviews by associations to which local hospitals voluntarily submit for review in order to improve the quality of health care services constitutes peer review, the discovery of which is barred by this section. Hofflander v. St. Catherine's Hospital, Inc. 2003 WI 77, 262 Wis. 2d 539, 664 N.W.2d 545, 00-2467.
146.40 146.40 Instructional programs for nurse's aides; reporting client abuse.
146.40(1) (1) In this section:
146.40(1)(ad) (ad) "Client" means a person who receives services from an entity.
146.40(1)(ag) (ag) "Credential" has the meaning given in s. 440.01 (2) (a).
146.40(1)(am) (am) "Developmentally disabled person" has the meaning specified in s. 55.01 (2).
146.40(1)(as) (as) "Entity" has the meaning given in s. 50.065 (1) (c).
146.40(1)(b) (b) "Home health agency" has the meaning specified in s. 50.49 (1) (a).
146.40(1)(bm) (bm) "Home health aide" means an individual employed by or under contract with a home health agency to provide home health aide services under the supervision of a registered nurse. "Home health aide" does not mean an individual who is licensed, permitted, certified or registered under ch. 441, 448, 449, 450, 455 or 459.
146.40(1)(bo) (bo) "Hospice" means a hospice that is licensed under subch. IV of ch. 50 and that is certified as a provider of services under 42 USC 1395 to 1395ccc.
146.40(1)(bp) (bp) "Hospice aide" means an individual employed by or under contract with a hospice to provide hospice aide services under the supervision of a registered nurse. "Hospice aide" does not mean an individual who is licensed, permitted, certified or registered under ch. 441, 448, 449, 450, 455 or 459.
146.40(1)(br) (br) "Hospital" has the meaning specified in s. 50.33 (2).
146.40(1)(bt) (bt) "Intermediate care facility for the mentally retarded" has the meaning under 42 USC 1396d (c) and (d).
146.40(1)(c) (c) "Licensed practical nurse" means a nurse who is licensed or has a temporary permit under s. 441.10 or is licensed as a licensed practical/vocational nurse in a party state, as defined in s. 441.50 (2) (j).
146.40(1)(d) (d) "Nurse's assistant" means an individual who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the individual, for the direct health care of a patient or resident. "Nurse's assistant" does not mean an individual who is licensed, permitted, certified, or registered under ch. 441, 448, 449, 450, 451, 455, 459, or 460 or an individual whose duties primarily involve skills that are different than those taught in instructional and competency evaluation programs for nurse's assistants certified under sub. (3) or evaluated by competency evaluation programs for nurse's assistants approved under sub. (3m).
146.40(1)(e) (e) "Nursing home" has the meaning specified in s. 50.01 (3).
146.40(1)(f) (f) "Registered nurse" means a nurse who has a certificate of registration under s. 441.06 or a temporary permit under s. 441.08 or who is licensed as a registered nurse in a party state, as defined in s. 441.50 (2) (j).
146.40(1)(g) (g) "Student nurse" means an individual who is currently enrolled in a school for professional nurses or a school for licensed practical nurses that meets standards established under s. 441.01 (4), or who has successfully completed the course work of a basic nursing course of the school but has not successfully completed the examination under s. 441.05 or 441.10 (2).
146.40(2) (2) A hospital, nursing home or intermediate care facility for the mentally retarded may not employ or contract for the services of an individual as a nurse's assistant, a home health agency may not employ or contract for the services of an individual as a home health aide and a hospice may not employ or contract for the services of an individual as a hospice aide, regardless of the title under which the individual is employed, unless one of the following is true:
146.40(2)(a) (a) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, except as provided in par. (g), and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual has successfully completed instruction in an instructional and competency evaluation program for nurse's assistants, home health aides or hospice aides that is certified by the department under sub. (3).
146.40(2)(am) (am) For hospitals, nursing homes, home health agencies, hospices and intermediate care facilities for the mentally retarded, if the individual was employed or under contract as a nurse's assistant, home health aide or hospice aide between October 1, 1985, and October 1, 1990, and if par. (b) or (c) does not apply, after the individual successfully completes, by December 31, 1991, a competency evaluation program that is approved by the department under sub. (3m).
146.40(2)(b) (b) For hospitals, nursing homes or home health agencies and intermediate care facilities for the mentally retarded, the individual has been employed or under contract as a nurse's assistant or as a home health aide for at least 12 months on or prior to October 1, 1990, and, for hospices, the individual has been employed or under contract as a hospice aide for at least 12 months on or prior to August 15, 1991.
146.40(2)(bm) (bm) For nursing homes that are certified providers of medical assistance, the individual has been employed or under contract as a nurse's assistant for one or more such nursing homes of the same employer in this state for at least 24 consecutive months before December 19, 1989.
146.40(2)(c) (c) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual is employed or under contract as a nurse's assistant, home health aide or hospice aide fewer than 120 calendar days by the hospital, nursing home, home health agency, hospice or intermediate care facility for the mentally retarded.
146.40(2)(d) (d) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual has successfully completed instruction in an instructional and competency evaluation program or has successfully completed a competency evaluation program for nurse's assistants, for home health aides or for hospice aides that is certified in another state that meets criteria for acceptance in this state as specified by the department by rule, or the individual is certified as a nurse's assistant, home health aide or hospice aide in another state that meets criteria for acceptance in this state as specified by the department by rule, except that after December 31, 1991, par. (a) applies.
146.40(2)(e) (e) For hospitals, home health agencies or hospices, whether or not certified providers of medical assistance, nursing homes that are not certified providers of medical assistance and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual is a student nurse who has successfully completed a basic nursing course from a school that is on the accredited list of schools specified under s. 441.01 (4) or who successfully completes a competency evaluation program for nurse's assistants, home health aides or hospice aides that is approved by the department under sub. (3m).
146.40(2)(em) (em) For nursing homes that are certified providers of medical assistance, the individual is a student nurse who successfully completes a competency evaluation program for nurse's assistants that is approved by the department under sub. (3m).
146.40(2)(f) (f) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual has successfully completed, prior to October 1, 1990, an instructional and competency evaluation program that is substantially the same as an instructional and competency evaluation program certified by the department under sub. (3) and that the department determines generally meets the standards for certification promulgated under sub. (3).
146.40(2)(g) (g) For nursing homes that are certified providers of medical assistance, the individual, if he or she has performed no nursing-related service for monetary compensation for 24 consecutive months after having satisfied the requirement under par. (a), again successfully completes instruction in an instructional and competency evaluation program for nurse's assistants that is certified by the department under sub. (3) or a competency evaluation program for nurse's assistants that is approved by the department under sub. (3m).
146.40(3) (3) Except as provided in sub. (4d), the department shall certify instructional and competency evaluation programs for nurse's assistants, for home health aides and for hospice aides that apply for certification and satisfy standards for certification promulgated by rule by the department. The department shall review the curriculum of each certified instructional and competency evaluation program at least once every 36 months following the date of certification to determine whether the program satisfies the standards for certification. Under this subsection, the department may, after providing notice, suspend or revoke the certification of an instructional and competency evaluation program or impose a plan of correction on the program if the program does not satisfy the standards for certification or operates under conditions that are other than those contained in the application approved by the department.
146.40(3m) (3m) The department shall review competency evaluation programs for nurse's assistants, for home health aides and for hospice aides and, except as provided in sub. (4d), may approve those competency evaluation programs that satisfy standards for approval that are specified in rules of the department. Under this subsection, the department may, after providing notice, suspend or revoke approval of a competency evaluation program or impose a plan of correction if the competency evaluation program fails to satisfy the standards or operates under conditions that are other than those contained in the application approved by the department.
146.40(4) (4) An instructional and competency evaluation program certified under sub. (3) or a competency evaluation program approved under sub. (3m) shall notify the department, on a form provided by the department, within 30 days after an individual has successfully completed the program.
146.40(4d) (4d)
146.40(4d)(a)(a) Except as provided in par. (am), the department shall require each applicant to provide the department with his or her social security number, if the applicant is an individual, or the applicant's federal employer identification number, if the applicant is not an individual, as a condition of issuing a certification under sub. (3) or an approval under sub. (3m).
146.40(4d)(am) (am) If an individual who applies for a certification or approval under par. (a) does not have a social security number, the individual, as a condition of obtaining certification or approval, shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of workforce development. A certification or approval issued in reliance upon a false statement submitted under this paragraph is invalid.
146.40(4d)(b) (b) The department may not disclose any information received under par. (a) to any person except to the department of revenue for the sole purpose of requesting certifications under s. 73.0301.
146.40(4d)(c) (c) Except as provided in par. (am), the department shall deny an application for the issuance of a certification or approval specified in par. (a) if the applicant does not provide the information specified in par. (a).
146.40(4d)(d) (d) The department shall deny an application for the issuance of a certification or approval specified in par. (a) or shall revoke a certification or approval if the department of revenue certifies under s. 73.0301 that the applicant for or holder of a certification or approval is liable for delinquent taxes.
146.40(4d)(e) (e) An action taken under par. (c) or (d) is subject to review only as provided under s. 73.0301 (2) (b) and (5).
146.40(4g) (4g)
146.40(4g)(a)(a) The department shall establish and maintain a registry that contains all of the following:
146.40(4g)(a)1. 1. A listing of all individuals about whom the department is notified under sub. (4).
146.40(4g)(a)2. 2. A listing of all individuals about whom the department is notified under sub. (4r) (a) or (am), for whom the department makes findings under sub. (4r) (b) and to whom any of the following applies:
146.40(4g)(a)2.a. a. The individual waives a hearing or fails to notify the department under sub. (4r) (c).
146.40(4g)(a)2.b. b. A hearing officer finds reasonable cause to believe that the individual performed an action alleged under sub. (4r) (a) or (am).
146.40(4g)(a)3. 3. Findings of the department under sub. (4r) (b) or of the hearing officer under sub. (4r) (d) concerning the misappropriation of property or the neglect or abuse of a client by an individual listed under subd. 2.
146.40(4g)(a)4. 4. A brief statement, if any, of an individual about whom the department is notified under sub. (4) and who disputes the department's findings under sub. (4r) (b) or the hearing officer's findings under sub. (4r) (d).
146.40(4g)(b) (b) The department shall provide, upon receipt of a specific, written request, information requested that is contained in the registry under par. (a).
146.40(4g)(c) (c) Section 46.90 does not apply to this subsection.
146.40(4m) (4m) An instructional and competency evaluation program under sub. (3) for which the department has suspended or revoked certification or imposed a plan of correction or a competency evaluation program under sub. (3m) for which the department has suspended or revoked approval or imposed a plan of correction may contest the department's action by sending, within 10 days after receipt of notice of the contested action, a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent. This subsection does not apply to a revocation of certification under sub. (4d) (d).
146.40(4r) (4r)
146.40(4r)(a)(a) Any individual may report to the department that he or she believes that any person employed by or under contract with an entity has neglected or abused a client or misappropriated the client's property.
146.40(4r)(am)1.1. Except as provided in subd. 2., an entity shall report to the department any allegation of misappropriation of the property of a client or of neglect or abuse of a client by any person employed by or under contract with the entity if the person is under the control of the entity.
146.40(4r)(am)2. 2. An entity shall report to the department of regulation and licensing any allegation of misappropriation of the property of a client or of neglect or abuse of a client by any person employed by or under contract with the entity if that person holds a credential that is related to the person's employment at, or contract with, the entity if the person is under the control of the entity.
146.40(4r)(am)3. 3. An entity that intentionally fails to report an allegation of misappropriation of the property of a client or of neglect or abuse of a client may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.
146.40(4r)(b) (b) Except as provided in pars. (em) and (er), the department shall review and investigate any report received under par. (a) or (am) and, if the allegation is substantiated, make specific, documented findings concerning the misappropriation of property or the neglect or abuse. The department shall in writing by certified mail notify the person specified in the report that the person's name and the department's findings about the person shall be listed in the registry under sub. (4g) (a) 2. and 3. unless the person contests the listings in a hearing before the division of hearings and appeals created under s. 15.103 (1). The written notification shall describe the investigation conducted by the department, enumerate the findings alleging misappropriation of property or neglect or abuse of a client and explain the consequence to the person specified in the report of waiving a hearing to contest the findings. The person specified in the report shall have 30 days after receipt of the notification to indicate to the department in writing whether he or she intends to contest the listing or to waive the hearing.
146.40(4r)(c) (c) If the nurse's assistant or home health aide under par. (b) notifies the department that he or she waives a hearing to contest the listings in the registry under par. (b), or fails to notify the department within 30 days after receipt of a notice under par. (b), the department shall enter the name of the individual under sub. (4g) (a) 2. and the department's findings about the individual under sub. (4g) (a) 3.
146.40(4r)(d) (d) If the person specified in the report received under par. (a) or (am) timely notifies the division of hearings and appeals created under s. 15.103 (1) that he or she contests the listings in the registry under par. (b), the division of hearings and appeals shall hold a hearing under the requirements of ch. 227. If after presentation of evidence a hearing officer finds that there is no reasonable cause to believe that the person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall dismiss the proceeding. If after presentation of evidence a hearing officer finds that there is reasonable cause to believe that the person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall so find and shall cause the name of the person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 2. and the hearing officer's findings about the person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 3.
146.40(4r)(e) (e) The nurse's assistant or home health aide may provide the department with a brief statement disputing the department's findings under par. (b) or the hearing officer's findings under par. (d) and, if so provided, the department shall enter the statement under sub. (4g) (a) 4.
146.40(4r)(em) (em) If the department of health and family services receives a report under par. (a) or (am) and determines that a person who is the subject of the report holds a credential that is related to the person's employment at, or contract with, the entity, the department of health and family services shall refer the report to the department of regulation and licensing.
146.40(4r)(er) (er) The department may contract with private field investigators to conduct investigations of reports received by the department under par. (a) or (am).
146.40(4r)(f) (f) Section 46.90 does not apply to this subsection.
146.40(5) (5)
146.40(5)(a)(a) The department, in consultation with the technical college system board, shall promulgate rules specifying standards for certification in this state of instructional and competency evaluation programs for nurse's assistants, home health aides and hospice aides. The standards shall include specialized training in providing care to individuals with special needs.
146.40(5)(b) (b) The department shall promulgate rules specifying criteria for acceptance by this state of an instructional and competency evaluation program or a competency evaluation program that is certified in another state, including whether the other state grants nurse's assistant privileges, home health aide privileges or hospice aide privileges to persons who have completed instruction in an instructional and competency evaluation program that is certified under sub. (3) and whether one of the following is true:
146.40(5)(b)1. 1. If the other state certifies instructional and competency evaluation programs for nurse's assistants, home health aides or hospice aides, the state's requirements are substantially similar, as determined by the department, to certification requirements in this state.
146.40(5)(b)2. 2. If the other state certifies nurse's assistants, home health aides or hospice aides, that state's requirements are such that one of the following applies:
146.40(5)(b)2.a. a. The instructional and competency evaluation programs required for attendance by persons receiving certificates are substantially similar, as determined by the department, to instructional and competency evaluation programs certified under sub. (3).
146.40(5)(b)2.b. b. The competency evaluation programs required for successful completion by persons receiving certificates are substantially similar, as determined by the department, to competency evaluation programs approved under sub. (3m).
146.40(6) (6) Any person who violates sub. (2) shall forfeit not more than $1,000.
146.40(7) (7) This section does not apply to a hospice that receives no federal or state moneys for any purpose.
146.40 Cross-reference Cross Reference: See also chs. HFS 13 and 129, Wis. adm. code.
146.40 Annotation Sub. (4r) provides for a hearing examiner to make a determination of abuse. That determination is the final agency determination. Kennedy v. DHSS, 199 Wis. 2d 442, 544 N.W.2d 917 (Ct. App. 1996), 95-1072.
146.50 146.50 Emergency medical services personnel; licensure; certification; training.
146.50(1) (1)Definitions. In this section:
146.50(1)(ag) (ag) "Act of terrorism" means a felony under ch. 939 to 951 that is committed with intent to terrorize and is committed under any of the following circumstances:
146.50(1)(ag)1. 1. The person committing the felony causes bodily harm, great bodily harm, or death to another.
146.50(1)(ag)2. 2. The person committing the felony causes damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For purposes of this subdivision, property is reduced in value by the amount that it would cost either to repair or replace it, whichever is less.
146.50(1)(ag)3. 3. The person committing the felony uses force or violence or the threat of force or violence.
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This is an archival version of the Wis. Stats. database for 2005. See Are the Statutes on this Website Official?