LRB-0220/1
SWB:skw
2023 - 2024 LEGISLATURE
January 2, 2024 - Introduced by Representatives Sinicki, Drake, Emerson,
Jacobson, Ortiz-Velez and Stubbs, cosponsored by Senator Taylor. Referred
to Committee on Health, Aging and Long-Term Care.
AB870,1,4 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, and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill creates a requirement for hospitals, ambulatory surgical centers, or
any other place where surgical procedures are performed (surgical facilities) to offer
surgical patients the option to have their surgical procedures videotaped and
discharge instructions recorded. Surgical facilities must provide notice of the option
and all related procedures and conditions set forth in the bill. For purposes of the
bill, a surgical procedure is one for which a surgical or other invasive procedure is
performed upon a patient under conscious sedation, deep sedation, regional
anesthesia, or general anesthesia. If a patient makes a request to have a surgical
procedure recorded, the bill requires that the surgical facility, or its designee, record
the surgical procedure with both audio and color video. When recording of a surgical
procedure is requested, the facility must continuously record with color video and
audio all activity in the surgical suite from the time preparation for the surgery
begins until all activity related to the surgery, including cleanup, is complete. The
bill requires that the recording must also include any preoperative communication
regarding the surgical procedure between the surgical practitioner and the patient
and any surgical time out, regardless of where those communications take place. If
the surgical patient is incapacitated, the surgical facility is required to provide

another authorized person 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. A patient may also request that his or her discharge
instructions be recorded. The surgical facility may determine if these instructions
will be videotaped or audiotaped.
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 and
who is scheduled to perform a surgical patient's surgical procedure to request that
a recording be made. A health care provider who provides the patient with discharge
instructions may also request that those instructions, as provided, be recorded. A
surgical facility must comply with these requests so long as certain conditions are
met, including that the surgical patient or other person authorized to make a
decision on behalf of the patient does not object. Under the bill, in certain limited
emergency circumstances, surgical facilities are not required to provide the option
of recording or to comply with a request for recording. If the facility is not required
to comply with a request for recording of a surgical procedure due to an emergency,
the facility must still provide the patient with the option to have the discharge
instructions recorded.
In return for exercising the option to have a surgical procedure recorded, under
the bill, the surgical patient or another person on behalf of the patient may not
disclose the recording except to limited authorized individuals, unless
confidentiality is waived by the health care provider or surgical practitioner that is
a subject of the video recording. 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 patient health care 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 and keep a separate additional
copy, but delete other copies of the recording from the recording device and
elsewhere. The facility must retain the separate additional copy for at least seven
years after the recording was first made.
Under the bill, a surgical facility may charge a surcharge of up to $25 for each
recording of a surgical procedure. 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 without an additional 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. A
surgical patient may also request up to two free copies of his or her discharge
instructions—one for the patient, and one for another person designated by the
patient.
Under the 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 set of
discharge instructions, or for all future surgical procedures and discharge
instructions to which provisions of the 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.
The 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, the fees, the 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. The bill also provides penalties for
interference with an advance request for recording, and for unauthorized disclosure
of a recording.
Under this bill, the Department of Health Services is required to promulgate
rules establishing standards relating to the recording equipment and the recording.
DHS may promulgate additional rules as necessary to implement and administer the
provisions of the bill. The bill also allows DHS to grant limited extensions for
compliance with the requirements of the bill, if a facility provides evidence of a
compelling need, financial or otherwise.
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.
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:
AB870,1 1Section 1 . 50.373 of the statutes is created to read:
AB870,3,3 250.373 Video recording of surgical procedures. (1) Definitions. In this
3section:
AB870,3,64 (a) “Conscious sedation” is a drug-induced depression of consciousness during
5which a patient responds purposefully to verbal commands, either alone or
6accompanied by light tactile stimulation.
AB870,4,3
1(b) “Deep sedation” is a drug-induced depression of consciousness during
2which a patient cannot be easily aroused but responds purposefully following
3repeated or painful stimulation.
AB870,4,64 (c) “Discharge instructions” means care instructions provided to a patient at
5or near the time of a patient's exit or release from a surgical facility after a surgical
6procedure.
AB870,4,97 (d) “General anesthesia" means a temporary status commonly produced by the
8administration of certain intravenous drugs and inhaled gases that cause a patient
9to be unconscious and unable to feel pain during a medical procedure.
AB870,4,1110 (e) “Guardian” means the person named by the court having the duty and
11authority of guardianship.
AB870,4,1312 (f) “Health care provider" means a person or entity described under s. 146.81
13(1) (a) to (p) and includes any surgical facility.
AB870,4,1614 (g) “Incapacitated" means unable to receive and evaluate information
15effectively or to communicate decisions to such an extent that an individual lacks the
16capacity to manage his or her health care decisions.
AB870,4,1917 (h) “Legal custodian” means a person, other than a parent or guardian, or an
18agency to whom legal custody of a child has been transferred by a court, but does not
19include a person who has only physical custody of the child.
AB870,4,2020 (i) “Patient health care records" has the meaning given in s. 146.81 (4).
AB870,4,2321 (j) “Regional anesthesia” means the use of local anesthetics to make a specific
22part of the body numb to prevent pain and allow for completion of a surgical
23procedure.
AB870,5,3
1(k) “Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory
2surgical center, as defined in 42 CFR 416.2, or any other place where a surgical
3procedure is performed.
AB870,5,54 (L) “Surgical patient" means a patient who is scheduled to undergo a surgical
5procedure.
AB870,5,96 (m) “Surgical practitioner" means a physician, surgeon, or osteopath under s.
7990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other
8individual who holds a valid license or other credential that allows him or her to
9perform a surgical procedure.
AB870,5,1410 (n) “Surgical procedure” means a surgical procedure for which a patient is
11under conscious sedation, deep sedation, regional anesthesia, or general anesthesia.
12“Surgical procedure” includes a colonoscopy or similarly invasive procedure if
13performed under conscious sedation, deep sedation, regional anesthesia, or general
14anesthesia.
AB870,5,1715 (o) “Surgical time out” means a final verification of details relating to a surgery,
16including at least confirmation of a surgical patient's identity, surgical site, and
17planned procedure.
AB870,6,8 18(2) Option for recording. (a) 1. A surgical facility shall provide to a surgical
19patient the option to have the surgical facility or the surgical facility's designee make
20a video recording of the patient's surgical procedure. For purposes of any recording
21of a surgical procedure made under this subdivision, the surgical facility or its
22designee shall make a continuous color video recording, including both audio and
23video and display of the time and date. The surgical facility or its designee may not
24interrupt the video recording within the surgical suite once started. Separate
25interactions outside of the surgical suite, including preoperative communications

1and surgical time outs under subd. 2., if outside of the surgical suite, and discharge
2instructions under subd. 3., if applicable, may be separately recorded. All areas of
3the surgical suite, including entrances and exits, must be in view on the recording
4and audible. The surgical facility or its designee shall begin the recording within the
5surgical suite of a surgical procedure under this subdivision when preparation of the
6surgical suite for that surgical patient's surgical procedure starts and continue the
7recording through the period of the cleanup after that procedure and until all activity
8in the surgical suite related to the procedure recorded is complete.
AB870,6,139 2. Any procedure recording made under this subsection shall include a
10recording, conforming to the standards described in subd. 1., of any preoperative
11communication regarding the surgical procedure between the surgical practitioner
12and the surgical patient and any surgical time out, regardless of where the
13preoperative communication or surgical time out takes place.
AB870,6,1814 3. A surgical facility shall also provide to a surgical patient the option to have
15his or her discharge instructions, as given by the patient's surgical practitioner or
16other health care provider, recorded. If a patient chooses to have his or her discharge
17instructions recorded, the recording may be audio only or videotaped, including
18audio, at the option of the surgical facility.
AB870,6,2119 (b) 1. A surgical facility shall notify a surgical patient of the option to have a
20recording made under par. (a) and of the procedures, the fees, the conditions, the
21surgical practitioner's request option, and the advance request option.
AB870,6,2522 2. If the surgical patient is a minor child, the surgical facility shall notify the
23minor child's parent, guardian, or legal custodian of the option to have a recording
24made under par. (a) and of the procedures, the fees, the conditions, the surgical
25practitioner's request option, and the advance request option.
AB870,7,4
13. If a surgical patient is incapacitated, a surgical facility shall notify a person
2authorized by the patient under s. 146.81 (5), if available, or, if not, a relative of the
3patient of the option and information under subd. 1. and allow that person to make
4a decision regarding whether to have a recording made under par. (a).
AB870,7,85 (c) A surgical practitioner who is scheduled to participate in a surgical patient's
6surgical procedure may request that the procedure be video recorded under the
7procedures described in this subsection. The surgical facility shall comply with the
8surgical practitioner's request if all of the following are true:
AB870,7,149 1. The requesting surgical practitioner has informed the surgical patient or, if
10the patient is a minor, a parent, guardian, or legal custodian, of the surgical
11practitioner's request for video recording and the reason the surgical practitioner
12has requested that recording. If the patient is incapacitated, the requesting surgical
13practitioner shall inform a person authorized by the patient under s. 146.81 (5), if
14available, or, if not, a relative of the patient.
AB870,7,1615 2. The surgical patient or other person informed under subd. 1. does not object
16to the video recording.
AB870,7,2217 (d) A patient's surgical practitioner or other health care provider who will
18administer a patient's discharge instructions may request that the patient's
19discharge instructions, as given by the surgical practitioner or other health care
20provider, be recorded under the procedures described in this subsection. The surgical
21facility shall comply with the surgical practitioner's or other health care provider's
22request if all of the following are true:
AB870,8,223 1. The requesting surgical practitioner or other health care provider has
24informed the patient or, if applicable, a parent, guardian, legal custodian, person
25authorized by the patient under s. 146.81 (5), or relative of the patient of the surgical

1practitioner's or health care provider's request for recording and the reason the
2surgical practitioner or other health care provider has requested that recording.
AB870,8,53 2. The surgical patient or, if applicable, the parent, guardian, legal custodian,
4person authorized by the patient under s. 146.81 (5), or relative of the patient does
5not object to the recording.
AB870,8,166 (e) 1. Except as otherwise provided under this subsection, no surgical patient
7or person on behalf of a surgical patient may disclose, unless the surgical practitioner
8or other health care provider that is a subject of the recording waives confidentiality,
9the content of a recording created under this section except to health care providers
10providing care to the surgical patient, to immediate family members or a person
11authorized by the patient under s. 146.81 (5), or to an attorney or an attorney's staff
12for the purpose of obtaining legal advice. If legal action relating to the surgical
13procedure is taken, the surgical patient or an attorney for the surgical patient may
14disclose the recording to additional individuals if necessary for the case, but the
15recording shall be filed under seal if permitted by the court. In all other respects,
16recordings under this section shall be treated as patient health care records.
AB870,8,2317 2. Notwithstanding the restrictions on disclosure under this paragraph, a
18surgical patient or a person on behalf of a surgical patient may disclose a recording
19of the surgical patient's discharge instructions made under this section to one or
20more persons designated by the surgical patient to assist the surgical patient with
21postsurgical care, and one person designated by the surgical patient may receive a
22free copy of the recording of the surgical patient's discharge instructions as set forth
23under sub. (10).
AB870,9,924 3. Notwithstanding subds. 1. and 2. and sub. (10), a surgical facility or surgical
25practitioner may, if authorization is granted under sub. (3), use a copy of a recording

1created under this section for teaching or research purposes outside the network of
2the surgical facility and if the surgical patient's personal identifying information is
3redacted or if the surgical patient or other person authorized to request or consent
4to a recording under this section on behalf of the patient expressly consents, in
5writing, to the use and disclosure. Notwithstanding any other provision of this
6section, a surgical facility or surgical practitioner may, if not for teaching or research
7purposes outside of the network of the surgical facility, be permitted to use a
8recording made under this subsection without informed written confirmation under
9sub. (3) if the disclosure is otherwise permitted under s. 146.82 or 146.83.
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