arbitration agreements in long-term care contracts
Under current law, with few exceptions, contractual agreements that compel
parties to litigation to submit to arbitration to resolve all or part of the dispute
between the parties are enforceable.
This bill prohibits an adult family home, a residential care apartment complex,
a community-based residential facility, a nursing home, a home health agency, or
hospice (long-term care facility) from requiring a resident or client to sign an
arbitration agreement as a condition of admission, retaliating against a resident or
client for not signing an arbitration agreement, or charging more money to a resident
or client for not signing an arbitration agreement. The bill includes specific penalties
for retaliating against a resident or client for not signing an arbitration agreement.
A long-term care facility that requests residents or clients to sign an arbitration
agreement must provide the arbitration agreement as a separate document in
another color and larger type size from any other admission agreement. The bill also
requires a long-term care facility to allow a resident or client to cancel an arbitration
agreement within 30 days after signing that provision and to include language about
the right to cancel in the arbitration agreement.
limits on noneconomic damages
Under current law, a person, or certain people related to the person, who is
injured by the negligence of a long-term care provider, such as a nursing home,
hospice, or assisted living facility, may sue for economic damages and for
noneconomic damages. Noneconomic damages are intended to compensate for pain
and suffering, loss of companionship, mental distress, and loss of enjoyment of life.
Current law limits noneconomic damages to $750,000 per occurrence of
negligence. Current law also limits damages for loss of society and companionship
to certain relatives recoverable in a wrongful death action against a long-term care
provider to $500,000 in the case of a deceased minor and $350,000 in the case of a
deceased adult.
Under current law, a person, or certain people related to the person, who is
injured by the long-term care provider may bring a civil action no later than three
years from the date on which the injury occurred, or within one year that the injury
was discovered or should have been discovered, except that, if a long-term care
provider conceals an act or omission that results in an injury, within one year from
the date on which the concealment was discovered or should have been discovered.
If the injury or concealment is discovered after the three-year limit has expired, the
person may still bring suit for up to five years after the long-term care provider's act
or omission.
The bill eliminates the limit on noneconomic damages and applies the general
three-year statute of limitations for torts to actions for negligence against a
long-term care provider.
Incident reports and health care provider reviews
Under current law, information acquired in connection with the review of
evaluation of a health care provider and incident or occurrence reports (incident
reports) must be kept confidential by a person who participates in the review of
evaluation. An incident report is a written or oral statement that is made to notify

a person, organization, or an evaluator who reviews or evaluates the services of
health care providers or charges for such services of an incident, practice, or other
situation that becomes the subject of such a review or evaluation. The persons,
organizations, or evaluators who review or evaluate the services of health care
providers for certain reasons must keep a record of their investigations, inquiries,
proceedings, and conclusions. Current law prohibits these records of a review or
evaluation from being used in any civil or criminal action against the health care
provider.
This bill allows the disclosure of incident or occurrence reports by a person who
participates in the review or evaluation of the health care provider and removes the
prohibition against using incident reports in a civil or criminal action. The bill also
allows records of a review or evaluation to be used in criminal actions. A person who
participates in the review or evaluation of the services or charges of a health care
provider is required, under the bill, to disclose an incident report to a court with
regard to a criminal matter, under certain conditions. The bill also requires
information acquired in connection with the review and evaluation to be disclosed
to a court in a criminal matter, under certain conditions.
health care provider regulatory records
Current law prohibits records given or disclosed to a regulatory agency and
statements of, or records of interviews with, employees of a health care provider
obtained by a regulatory agency (regulatory records) from being used as evidence in
a civil or criminal action brought against a health care provider. A regulatory agency,
in this instance, is either the Department of Regulation and Licensing (renamed the
Department of Safety and Professional Services) or the division within the
Department of Health Services that conducts quality assurance activities related to
health care providers. The bill eliminates the prohibition against using regulatory
records as evidence in a civil or criminal action.
punitive damages
Under current law, punitive damages may be assessed in a civil case if the
defendant acted maliciously toward the plaintiff or in an intentional disregard of the
rights of the plaintiff. Current law limits punitive damages to the greater of twice
the amount of compensatory damages recovered by the plaintiff or $200,000 unless
the defendant's actions included the operation of a vehicle while under the influence
of an intoxicant to a degree that rendered the defendant incapable of the safe
operation of that vehicle. The bill creates a new exception to the limitation on
punitive damages sought from a nursing home, adult family home, residential care
apartment complex, or community-based residential care facility when the
defendant is an administrator, agent, director, employee, officer, or operator of a
nursing home, adult family home, residential care apartment complex, or
community-based residential care facility and the actions of the defendant take
place in that facility.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a

report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB345, s. 1 1Section 1. 50.057 of the statutes is created to read:
AB345,4,2 250.057 Arbitration agreements. (1) In this section:
AB345,4,93 (a) "Arbitration agreement" means any provision in a contract, covenant, or
4agreement between a resident or client, or a person acting on behalf of the resident
5or client, and a long-term care facility, which is made before the resident or client
6suffers injury or harm that compels arbitration between the parties, and which
7limits or waives the right of the resident to bring a civil action against the long-term
8care facility or limits the resident's or client's remedies in a civil action against the
9long-term care facility.
AB345,4,1210 (b) "Long-term care facility" means an adult family home, a residential care
11apartment complex, a community-based residential facility, a nursing home, a home
12health agency, or a hospice, as defined in s. 50.90 (1).
AB345,4,13 13(2) No long-term care facility may do any of the following:
AB345,4,1614 (a) Require a prospective resident or client, or a person acting on behalf of the
15resident or client, to sign an arbitration agreement as a condition of admission to the
16long-term care facility.
AB345,4,1817 (b) Retaliate against a resident or client or discharge a resident or client for
18failure to sign an arbitration agreement.
AB345,4,2019 (c) Charge additional money to a resident or client for not signing an arbitration
20agreement.
AB345,5,5
1(3) A long-term care facility, if it requests a resident or client to sign an
2arbitration agreement, shall provide the arbitration agreement as a separate
3document from any other admission agreement and shall make the arbitration
4agreement document another color and a larger type size than the admission
5agreement.
AB345,5,12 6(4) A long-term care facility that requests a resident or client to sign an
7arbitration agreement shall allow the resident or client, or a person acting on behalf
8of the resident or client, to cancel the arbitration agreement within 30 days of signing
9the arbitration agreement and shall include language in the arbitration agreement
10stating that a resident, client, or person acting on behalf of the resident or client has
11a right to cancel the arbitration agreement within 30 days of signing the arbitration
12agreement.
AB345,5,14 13(5) (a) Any person who is retaliated against in violation of sub. (2) (b) may
14commence an action in circuit court for damages incurred as a result of the violation.
AB345,5,1615 (b) Violators of sub. (2) (b) may be fined not more than $1,000 or imprisoned for
16up to 6 months or both for each violation.
AB345, s. 2 17Section 2. 146.38 (1m) of the statutes, as affected by 2011 Wisconsin Act 2, is
18amended to read:
AB345,5,2519 146.38 (1m) No person who participates in the review or evaluation of the
20services of health care providers or charges for such services may disclose an incident
21or occurrence report or
any information acquired in connection with such review or
22evaluation except as provided in sub. (3) or (3m) and except that a person who
23participates in the review or evaluation shall disclose an incident or occurrence
24report to a court of record with regard to any criminal matter, in accordance with chs.
25885 to 895 and 995 and after issuance of a subpoena
.
AB345, s. 3
1Section 3. 146.38 (2) of the statutes, as affected by 2011 Wisconsin Act 2, is
2amended to read:
AB345,6,193 146.38 (2) All persons, organizations, or evaluators, whether from one or more
4entities, who review or evaluate the services of health care providers in order to help
5improve the quality of health care, to avoid improper utilization of the services of
6health care providers, or to determine the reasonable charges for such services shall
7keep a record of their investigations, inquiries, proceedings and conclusions. No such
8record may be released to any person under s. 804.10 (4) or otherwise except as
9provided in sub. (3) or (3m). No such record may be used in any civil or criminal action
10against the health care provider or any other health care provider; however, except
11for incident or occurrence reports or records from other persons, organizations, or
12evaluators reviewing or evaluating health care providers,
information, documents,
13or records presented during the review or evaluation may not be construed as
14immune from discovery under s. 804.10 (4) or use in any civil or criminal action
15merely because they were so presented. Any person who testifies during or
16participates in the review or evaluation may testify in any civil or criminal action as
17to matters within his or her knowledge, but may not testify as to information
18obtained through his or her participation in the review or evaluation, nor as to any
19conclusion of such review or evaluation.
AB345, s. 4 20Section 4. 146.38 (2m) of the statutes, as created by 2011 Wisconsin Act 2, is
21repealed.
AB345, s. 5 22Section 5. 146.38 (3) (em) of the statutes is created to read:
AB345,6,2423 146.38 (3) (em) With regard to any criminal matter, to a court of record, in
24accordance with chs. 885 to 895 and 995 and after issuance of a subpoena; and
AB345, s. 6
1Section 6. 146.38 (3t) of the statutes, as created by 2011 Wisconsin Act 2, is
2amended to read:
AB345,7,63 146.38 (3t) A record described under sub. (2) or an incident or occurrence report
4disclosed either under sub. (3) or (3m) or in violation of this section remains
5confidential and may not be used in any civil or criminal action against the health
6care provider or any other health care provider.
AB345, s. 7 7Section 7. 893.555 of the statutes, as created by 2011 Wisconsin Act 2, is
8repealed.
AB345, s. 8 9Section 8. 895.043 (6) of the statutes, as created by 2011 Wisconsin Act 2, is
10renumbered 895.043 (6) (intro.) and amended to read:
AB345,7,1411 895.043 (6) Limitation on damages. (intro.) Punitive damages received by the
12plaintiff may not exceed twice the amount of any compensatory damages recovered
13by the plaintiff or $200,000, whichever is greater. This subsection does not apply to
14 a any of the following:
AB345,7,21 15(a) A plaintiff seeking punitive damages from a defendant whose actions under
16sub. (3) included the operation of a vehicle, including a motor vehicle as defined
17under s. 340.01 (35), a snowmobile as defined under s. 340.01 (58a), an all-terrain
18vehicle as defined under s. 340.01 (2g), and a boat as defined under s. 30.50 (2), while
19under the influence of an intoxicant to a degree that rendered the defendant
20incapable of safe operation of the vehicle. In this subsection, "intoxicant" has the
21meaning given in s. 30.50 (4e).
AB345, s. 9 22Section 9. 895.043 (6) (b) of the statutes is created to read:
AB345,8,223 895.043 (6) (b) A plaintiff seeking punitive damages from a faculty defined in
24s. 50.01 (1), (1d), (1g), or (3), 50.49 (1) (a), or 50.90 (1), for the actions of an

1administrator, agent, director, employee, officer, or operator of that facility whose
2actions under sub. (3) take place in that facility.
AB345, s. 10 3Section 10. 904.16 of the statutes, as created by 2011 Wisconsin Act 2, is
4repealed.
AB345, s. 11 5Section 11. Initial applicability.
AB345,8,86 (1) The renumbering and amendment of section 895.043 (6) of the statutes and
7the creation of section 895.043 (6) (b) of the statutes first apply to actions that are
8commenced on the effective date of this subsection.
AB345,8,99 (End)
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