2015 - 2016 LEGISLATURE
June 4, 2015 - Introduced by Representatives Sinicki, Brostoff, Quinn, Sargent
and Subeck. Referred to Committee on Health.
AB255,1,5 1An Act to amend 146.81 (4); and to create 50.373, 146.83 (3f) (b) 3m. and 655.27
2(1g) of the statutes; relating to: video recording of surgical procedures,
3providing an exemption from emergency rule procedures, granting
4rule-making authority, requiring the exercise of rule-making authority, and
5providing penalties.
Analysis by the Legislative Reference Bureau
This bill creates a requirement for hospitals, ambulatory surgical centers, or
any other places where surgical procedures are performed (surgical facilities) to offer
surgical patients the option to have their surgical procedures videotaped. Surgical
facilities must provide notice of the option and all related procedures and conditions
set forth in the bill. For purposes of this bill, a surgical procedure is one for which
a patient is given a general anesthetic. If a patient makes a request to have a surgical
procedure recorded, this bill requires that the surgical facility, or its designee, record
the surgical procedure with both audio and color video, and record with color video
any entryway to or exit from the surgical suite during the time reserved for the
surgery of the requesting patient, including preparation time. If the surgical patient
is incapacitated, the surgical facility is required to provide a person authorized by
the patient with notice of the option for video recording, and that person may request
that a recording be made. Similarly, if the surgical patient is a minor, the surgical
facility must notify a parent, guardian, or legal custodian of the option for video
recording and allow that person to make a request for a recording on behalf of the

minor. The bill also allows a physician or certain other individual who holds a valid
license or other credential that allows him or her to perform surgical procedures for
which a patient is under general anesthesia (surgical practitioner) and who is
scheduled to perform a surgical patient's surgical procedure to request that a
recording be made, and a surgical facility must comply with the request so long as
certain conditions are met, including that the surgical patient or person authorized
by the patient does not object. Under the bill, in certain limited emergency
circumstances, surgical facilities are not required to provide the option of recording.
In return for exercising the option to have a surgical procedure recorded, under
the bill, the surgical patient or, if applicable, parent, guardian, legal custodian, or
person authorized by the patient may disclose the recording only to limited
authorized individuals unless confidentiality is waived by the surgical practitioner.
Video recordings of surgical procedures created under this bill are otherwise treated
as patient health care records and are subject to the same protections as other
medical records including all criminal and civil penalties for improper disclosure or
destruction. The bill specifies that, once a recording is complete, the surgical facility
or its designee must preserve the recording as part of the patient's health care record
but delete copies of the recording from the recording device and elsewhere. Upon
request, the surgical facility must provide to the patient, person authorized by the
patient, or parent, guardian, or legal custodian of the patient one copy of the
recording free of charge. Recordings under this bill are admissible as evidence in any
civil or criminal action or proceeding related to any alleged act or omission depicted
in the recording.
Under this bill, a surgical patient may complete an advance request for
recording, which permits an individual who is of sound mind and over the age of 18
to request video recording for future surgical procedures. The individual may
complete an advance request for a single specific surgical procedure or for all future
surgical procedures to which this bill would apply. An advance request must be
completed voluntarily, and must be in writing and signed and dated in the presence
of a witness over the age of 18. The advance request may be revoked at any time.
This bill provides that a health care provider who knowingly refuses to comply
with a patient request for recording is subject to a forfeiture of up to $25,000 for each
violation. A surgical facility that fails to provide a required notice of the option for
recording, including information regarding the procedures, fees, conditions, the
surgical practitioner's request option, and the advance request option, is subject to
a forfeiture of up to $25,000 for each violation. Whoever intentionally conceals,
cancels, defaces, obliterates, damages, or destroys an advance request for recording
without consent may be subject to a forfeiture of up to $25,000 for each violation.
Finally, a patient, parent, guardian, legal custodian, or person authorized by a
patient who knowingly violates the confidentiality provision and discloses a video to
an unauthorized individual is subject to a forfeiture of up to $25,000 for each
violation.
Under this bill, the Department of Health Services (DHS) is required to
promulgate rules establishing standards relating to the recording equipment, the
recording, and the fees to be charged for completing the recording and for obtaining

copies of the recording. DHS may promulgate additional rules as necessary to
implement and administer the provisions of the bill.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB255,1 1Section 1. 50.373 of the statutes is created to read:
AB255,3,3 250.373 Video recording of surgical procedures. (1) Definitions. In this
3section:
AB255,3,64 (a) "General anesthesia" means a temporary status commonly produced by the
5administration of certain intravenous drugs and inhaled gases that cause a patient
6to be unconscious and unable to feel pain during a medical procedure.
AB255,3,87 (b) "Health care provider" means a person or entity described under s. 146.81
8(1) (a) to (p) and includes any surgical facility under par. (e).
AB255,3,119 (c) "Incapacitated" means unable to receive and evaluate information
10effectively or to communicate decisions to such an extent that an individual lacks the
11capacity to manage his or her health care decisions.
AB255,3,1212 (d) "Patient health care records" has the meaning given in s. 146.81 (4).
AB255,3,1513 (e) "Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory
14surgical center, as defined in 42 CFR 416.2, or any other place where a surgical
15procedure is performed.
AB255,3,1716 (f) "Surgical patient" means a patient who is scheduled to undergo a surgical
17procedure.
AB255,4,218 (g) "Surgical practitioner" means a physician, surgeon, or osteopath under s.
19990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other

1individual who holds a valid license or other credential that allows him or her to
2perform a surgical procedure.
AB255,4,43 (h) "Surgical procedure" means a surgical procedure for which a patient is
4under general anesthesia.
AB255,4,9 5(2) Option for recording. (a) A surgical facility shall provide a surgical
6patient the option to have the surgical facility or the surgical facility's designee make
7a color video recording, including both audio and video and display of the time and
8date, of the patient's surgical procedure at the patient's expense as described under
9sub. (10).
AB255,4,1310 (b) 1. A surgical facility shall notify a surgical patient or, if the surgical patient
11is incapacitated, a person authorized by the patient under s. 146.81 (5) of the option
12to have a recording made under par. (a) and of the procedures, fees, conditions, the
13surgical practitioner's request option, and the advance request option.
AB255,4,1714 2. If the surgical patient is a minor child, the surgical facility shall notify the
15minor child's parent, guardian, or legal custodian of the option to have a recording
16made under par. (a) and of the procedures, fees, conditions, the surgical practitioner's
17request option, and the advance request option.
AB255,4,2118 (c) A surgical practitioner who is scheduled to participate in a surgical patient's
19surgical procedure may request that the procedure be video recorded under the
20procedures described in this subsection. The surgical facility shall comply with the
21surgical practitioner's request if all of the following are true:
AB255,4,2522 1. The requesting surgical practitioner has informed the patient or, if
23applicable, a parent, guardian, legal custodian, or a person authorized by the patient,
24of the surgical practitioner's request for video recording and the reason the surgical
25practitioner has requested that recording.
AB255,5,3
12. The surgical patient, or if applicable, the parent, guardian, legal custodian,
2or person authorized by the patient under s. 146.81 (5), does not object to the video
3recording.
AB255,5,134 (d) A surgical patient, or if applicable, parent, guardian, legal custodian, or
5person authorized by the patient under s. 146.81 (5), may not disclose, unless the
6surgical practitioner involved waives confidentiality, the content of a video recording
7created under this section except to health care providers providing care to the
8surgical patient, to immediate family members or a person authorized by the patient
9under s. 146.81 (5), or to an attorney or an attorney's staff for the purpose of obtaining
10legal advice. If legal action is taken, the surgical patient may disclose the video
11recording to additional individuals if necessary for the case, but it shall be filed under
12seal if permitted. In all other respects, recordings under this section shall be treated
13as patient health care records.
AB255,5,21 14(3) Entry and exit recording. If a surgical patient requests to have his or her
15surgical procedure recorded under sub. (2) (a), the surgical facility or its designee
16shall also make a color video recording, including display of the time and date, of any
17entryway to or exit from the surgical suite in which the surgical procedure being
18recorded is taking place, during the time from which the surgical suite is being
19prepared for the surgery of the patient being recorded until that surgical patient
20exits the suite. A surgical facility is not required to record audio in making the
21recording under this subsection.
AB255,5,25 22(4) Equipment and technical assistance. A surgical facility shall have
23available appropriate video recording equipment and technical assistance as
24determined by the department in rules promulgated under sub. (8) to comply with
25a surgical patient request for a recording of his or her surgical procedure.
AB255,6,3
1(5) Incapacity. If a surgical patient is incapacitated, a person authorized by
2the patient under s. 146.81 (5) may request that a recording be made of the patient's
3surgical procedure under sub. (2) (a).
AB255,6,6 4(6) Minors. If a surgical patient is a minor child, a parent, guardian, or legal
5custodian may request that a recording be made of the minor child's surgical
6procedure under sub. (2) (a).
AB255,6,10 7(7) Exception for emergencies. (a) Notwithstanding sub. (2), a surgical
8facility is not required to provide the option of a video recording under this section
9if the surgical practitioner determines in the exercise of his or her professional
10judgment that either of the following is true:
AB255,6,1111 1. Immediate surgery is necessary to avert death.
AB255,6,1412 2. Other circumstances exist such that video recording would cause a delay that
13would create a serious risk of substantial and irreversible impairment of one or more
14of the surgical patient's bodily functions.
AB255,6,1915 (b) The health care provider shall inform the surgical patient, or the parent,
16guardian, or legal custodian or person authorized by the patient under s. 146.81 (5),
17if applicable, of the medical indications supporting the surgical practitioner's
18reasonable medical judgment that either of the emergency conditions under par. (a)
19exists.
AB255,6,21 20(8) Rules. (a) The department shall promulgate rules establishing all of the
21following:
AB255,6,2522 1. Standards for video recording of surgical procedures and the use of video
23recording equipment in the surgery setting to ensure such recordings are
24professional and of sufficient quality to accurately portray what takes place during
25a surgical procedure.
AB255,7,1
12. The fees under sub. (10) (a).
AB255,7,32 (b) The department may promulgate rules, as necessary, to implement and
3administer this section, including any of the following:
AB255,7,54 1. Establishing criteria and procedures for providing notice and the option for
5video recording under sub. (2).
AB255,7,76 2. Implementing the requirements regarding preservation and destruction of
7recordings under sub. (9).
AB255,7,98 3. Establishing standards, procedures, and forms for advance requests for
9recording under sub. (12).
AB255,7,1010 4. Implementing the forfeiture procedures under sub. (14).
AB255,7,13 11(9) Preservation and destruction. After the recording of a surgical procedure
12under this section is complete, the surgical facility or its designee shall promptly do
13all of the following:
AB255,7,1614 (a) Preserve the recording as part of the surgical patient's health care record,
15which may include both a copy in the patient's health care record and any electronic
16backup of health care records kept in the normal course of business.
AB255,7,1917 (b) Except as provided under par. (a), delete copies of the recording from the
18recording device or any other electronic device, including any memory card or flash
19drive.
AB255,7,22 20(10) Fees. (a) A surgical facility may charge a reasonable fee, as determined
21by the department, for the surgical facility's videography services provided under
22this section and its storage of the recording of the surgical procedure.
AB255,8,323 (b) A surgical facility may charge fees as set forth in s. 146.83 (3f) for providing
24copies from a surgical patient's health care record of a recording under this section,
25except that the surgical facility shall provide, upon request, one copy of any recording

1taken under this section to a surgical patient, a person authorized by the surgical
2patient under s. 146.81 (5), or a parent, guardian, or legal custodian of a minor
3surgical patient free of charge.
AB255,8,10 4(11) Admissibility of recording. For purposes of admissibility in a civil or
5criminal action or proceeding, an audiovisual recording created under this section
6is a patient health care record under s. 146.81 and shall be treated as other patient
7health care records under ss. 908.03 (6m) and 909.02 (11). If certified by an
8appropriate record custodian, recordings under this section shall be admissible as
9evidence in any civil or criminal action or proceeding related to any alleged act or
10omission depicted in the recording.
AB255,8,13 11(12) Advance requests for recording. (a) Definition. In this subsection,
12"principal" means an individual who executes an advance request for surgical
13procedure recording instrument.
AB255,8,1914 (b) Advance requests for recording. 1. An individual who is of sound mind and
15has attained age 18 may voluntarily execute an advance request for surgical
16procedure recording instrument. An individual for whom an adjudication of
17incompetence and appointment of a guardian of the individual is in effect in this state
18is presumed not to be of sound mind for purposes of this subsection and for executing
19an advance request for surgical procedure recording instrument.
AB255,8,2220 2. The desires of a principal who does not have incapacity supersede the effect
21of his or her advance request for surgical procedure recording instrument at all
22times.
AB255,9,1623 3. The department shall prepare and provide copies of an advance request for
24surgical procedure recording instrument and accompanying information for
25distribution in quantities to health care professionals, hospitals and other surgical

1facilities, county clerks, and local bar associations and individually to private
2persons. The department shall determine the form of the request form and
3accompanying instructions. The department shall include on the form both an option
4for requesting the recording of a specific single surgical procedure and an option for
5requesting the recording of all future surgical procedures appropriate under this
6section. The department shall also include on the form a statement to the effect that
7a principal who exercises the option for video recording either a single surgical
8procedure or all future surgical procedures agrees that, unless the surgical
9practitioner involved waives confidentiality, a video recording created under this
10section is confidential and the principal or, if applicable, a parent, guardian, legal
11custodian, or person authorized by a patient under s. 146.81 (5), may disclose it only
12to health care providers providing care to the principal, to immediate family
13members or a person authorized by the patient under s. 146.81 (5), or to an attorney
14or an attorney's staff for the purpose of obtaining legal advice, and if legal action is
15taken, the principal may disclose the video recording to additional individuals if
16necessary for the case, but it must be filed under seal if permitted.
AB255,9,1817 (c) Advance request for recording; execution. A valid advance request for
18surgical procedure recording shall be all of the following:
AB255,9,1919 1. In writing.
AB255,9,2120 2. Dated and signed by the principal or by an individual who has attained age
2118, at the express direction and in the presence of the principal.
AB255,9,2322 3. Signed in the presence of a witness who is an individual who has attained
23the age 18.
AB255,9,2424 4. Voluntarily executed.
AB255,10,2
1(d) Revocation. A principal may revoke his or her advance request for surgical
2procedure recording instrument at any time by doing any of the following:
AB255,10,63 1. Canceling, defacing, obliterating, burning, tearing, or otherwise destroying
4the advance request for surgical procedure recording instrument or directing
5another in the presence of the principal to so destroy the advance request for surgical
6procedure recording instrument.
AB255,10,97 2. Executing a statement, in writing, that is signed and dated by the principal,
8expressing the principal's intent to revoke the advance request for surgical procedure
9recording instrument.
AB255,10,1110 3. Verbally expressing the desire to revoke the advance request for surgical
11procedure recording instrument in the presence of a witness.
AB255,10,1412 4. Executing a subsequent advance request for surgical procedure recording
13instrument that replaces an existing advance request for surgical procedure
14recording instrument.
AB255,10,18 15(13) Penalties. (a) Except as provided under sub. (7), a health care provider
16who knowingly refuses to comply with a surgical patient request to have his or her
17surgical procedure recorded may be subject to a forfeiture of not more than $25,000
18for each violation.
AB255,10,2119 (b) Except as provided under sub. (7), a surgical facility that fails to provide a
20notice required under sub. (2) (b) may be subject to a forfeiture of not more than
21$25,000 for each violation.
AB255,10,2522 (c) Whoever intentionally conceals, cancels, defaces, obliterates, damages, or
23destroys an advance request for surgical procedure recording instrument created
24under sub. (12) without the consent of the principal for that instrument may be
25subject to a forfeiture of not more than $25,000 for each violation.
AB255,11,3
1(d) A surgical patient, parent, guardian, legal custodian, or person authorized
2by a patient under s. 146.81 (5) who knowingly violates sub. (2) (d) may be subject
3to a forfeiture of not more than $25,000 for each violation.
AB255,11,9 4(14) Forfeiture procedure. (a) The department may directly assess
5forfeitures provided for under sub. (13). If the department determines that a
6forfeiture should be assessed for a particular violation, the department shall send a
7notice of assessment to the health care provider. The notice shall specify the amount
8of the forfeiture assessed, the violation and the statute or rule alleged to have been
9violated, and shall inform the hospital of the right to a hearing under par. (b).
AB255,11,2110 (b) A health care provider may contest an assessment of a forfeiture by sending,
11within 30 days after receipt of notice under par. (a), a written request for a hearing
12under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1).
13The administrator of the division may designate a hearing examiner to preside over
14the case and recommend a decision to the administrator under s. 227.46. The
15decision of the administrator of the division shall be the final administrative
16decision. The division shall commence the hearing within 60 days after receipt of the
17request for a hearing and shall issue a final decision within 30 days after the close
18of the hearing. Proceedings before the division are governed by ch. 227. In any
19petition for judicial review of a decision by the division, the party, other than the
20petitioner, who was in the proceeding before the division shall be the named
21respondent.
AB255,12,222 (c) All forfeitures shall be paid to the department within 30 days after receipt
23of notice of assessment or, if the forfeiture is contested under par. (b), within 30 days
24after receipt of the final decision after exhaustion of administrative review, unless
25the final decision is appealed and the order is stayed by court order. The department

1shall remit all forfeitures paid to the secretary of administration for deposit in the
2injured patients and families compensation fund under s. 655.27.
AB255,12,63 (d) The attorney general may bring an action in the name of the state to collect
4any forfeiture imposed under sub. (13) if the forfeiture has not been paid following
5the exhaustion of all administrative and judicial reviews. The only issue to be
6contested in any such action shall be whether the forfeiture has been paid.
AB255,2 7Section 2. 146.81 (4) of the statutes is amended to read:
AB255,12,228 146.81 (4) "Patient health care records" means all records related to the health
9of a patient prepared by or under the supervision of a health care provider; all video
10recordings under s. 50.373 related to the surgical patient;
and all records made by
11an ambulance service provider, as defined in s. 256.01 (3), an emergency medical
12technician, as defined in s. 256.01 (5), or a first responder, as defined in s. 256.01 (9),
13in administering emergency care procedures to and handling and transporting sick,
14disabled, or injured individuals. "Patient health care records" includes billing
15statements and invoices for treatment or services provided by a health care provider
16and includes health summary forms prepared under s. 302.388 (2). "Patient health
17care records" does not include those records subject to s. 51.30, reports collected
18under s. 69.186, records of tests administered under s. 252.15 (5g) or (5j), 343.305,
19938.296 (4) or (5) or 968.38 (4) or (5), records related to sales of pseudoephedrine
20products, as defined in s. 961.01 (20c), that are maintained by pharmacies under s.
21961.235, fetal monitor tracings, as defined under s. 146.817 (1), or a pupil's physical
22health records maintained by a school under s. 118.125.
AB255,3 23Section 3. 146.83 (3f) (b) 3m. of the statutes is created to read:
AB255,12,2524 146.83 (3f) (b) 3m. Except as provided in s. 50.373, for a copy of a video
25recording of a surgical procedure, $35 per copy.
AB255,4
1Section 4. 655.27 (1g) of the statutes is created to read:
AB255,13,32 655.27 (1g) Deposit of forfeitures. Forfeitures paid under s. 50.373 (13) shall
3be deposited in the fund under sub. (1).
AB255,5 4Section 5 . Nonstatutory provisions.
AB255,13,205 (1) Emergency rules. Using the procedure under section 227.24 of the statutes,
6the department of health services shall promulgate the rules required under section
750.373 of the statutes, as created by this act, for the period before the effective date
8of the permanent rules promulgated under section 50.373 of the statutes, as created
9by this act, but not to exceed the period authorized under section 227.24 (1) (c) of the
10statutes, subject to extension under section 227.24 (2) of the statutes.
11Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the department
12of health services is not required to provide evidence that promulgating a rule under
13this subsection as an emergency rule is necessary for the preservation of the public
14peace, health, safety, or welfare and is not required to provide a finding of emergency
15for a rule promulgated under this subsection. Notwithstanding section 227.24 (1) (e)
161d. of the statutes, the department of health services is not required to prepare a
17statement of the scope of the rules promulgated under this subsection.
18Notwithstanding section 227.24 (1) (e) 1g. of the statutes, the department of health
19services is not required to present the rules promulgated under this subsection to the
20governor for approval.
AB255,6 21Section 6. Effective dates. This act takes effect on the first day of the 13th
22month beginning after publication, except as follows:
AB255,13,2323 (1) Section 5 (1 ) of this act takes effect on the day after publication.
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