146.35(4)
(4) None of the following may be asserted as a defense to prosecution for a violation of
sub. (2):
146.35(4)(a)
(a) Consent by the female minor or by a parent of the female minor to the circumcision, excision or infibulation.
146.35(4)(b)
(b) The circumcision, excision or infibulation is required as a matter of custom or ritual.
146.35(5)
(5) Whoever violates
sub. (2) may be fined not more than $10,000 or imprisoned for not more than 7 years and 6 months or both.
146.35 History
History: 1995 a. 365;
1997 a. 283.
146.36
146.36
Council on health care fraud and abuse. 146.36(1)(b)
(b) "Council" means the council on health care fraud and abuse.
146.36(1)(d)
(d) "Insurer" means an insurer, as defined in
s. 600.03 (27), that is authorized to do business in this state in one or more lines of insurance that includes health insurance.
146.36(2)
(2) The council may do all of the following:
146.36(2)(a)
(a) Study all aspects of health care fraud and abuse.
146.36(2)(b)
(b) Develop strategies to combat health care fraud and abuse by health care consumers, health care providers and insurers.
146.36(2)(c)
(c) Examine problems that relate to electronic claims for payment.
146.36(2)(d)
(d) Survey efforts of other states to reduce health care fraud and abuse.
146.36(2)(e)
(e) Collect information relevant to preparation of the report specified under
sub. (3), from health care providers, insurers, employee benefit plan administrators, law enforcement agencies and other sources.
146.36(2)(f)
(f) Conduct public hearings concerning health care fraud and abuse.
146.36(2)(g)
(g) Engage in public information programs concerning health care fraud and abuse.
146.36(2)(h)
(h) Receive, for deposit in the council's account under
s. 20.505 (4) (gm), gifts, grants or bequests to fund its operating expenses.
146.36(3)
(3) Annually, the council shall submit to the governor and, under
s. 13.172 (2), to the legislature a report that does all of the following:
146.36(3)(a)
(a) Identifies different types of fraud and abuse in health care.
146.36(3)(b)
(b) Analyzes issues relating to health care fraud and abuse, such as self-interested referrals.
146.36(3)(c)
(c) Lists successful prosecutions of health care fraud and activities to combat health care abuse that have been conducted in courts in this state or as contested cases under
subch. III of ch. 227.
146.36(3)(d)
(d) Specifies activities conducted by the council to combat health care fraud and abuse.
146.36(3)(e)
(e) Recommends specific proposed changes to state statutes or administrative rules to define terms and to combat health care fraud and abuse.
146.36(4)
(4) A council member shall be immune from civil liability and criminal prosecution for any act or omission done in good faith within the scope of his or her powers and duties under this section.
146.36(5)
(5) This section does not apply after December 30, 2000.
146.36 History
History: 1995 a. 442.
146.37
146.37
Health care services review; civil immunity. 146.37(1g)
(1g) Except as provided in
s. 153.85, no person acting in good faith who participates in the review or evaluation of the services of health care providers or facilities or the charges for such services conducted in connection with any program organized and operated to help improve the quality of health care, to avoid improper utilization of the services of health care providers or facilities or to determine the reasonable charges for such services, or who participates in the obtaining of health care information under
ch. 153, is liable for any civil damages as a result of any act or omission by such person in the course of such review or evaluation. Acts and omissions to which this subsection applies include, but are not limited to, acts or omissions by peer review committees or hospital governing bodies in censuring, reprimanding, limiting or revoking hospital staff privileges or notifying the medical examining board or podiatrists affiliated credentialing board under
s. 50.36 or taking any other disciplinary action against a health care provider or facility and acts or omissions by a medical director, as defined in
s. 146.50 (1) (j), in reviewing the performance of emergency medical technicians or ambulance service providers.
146.37(1m)
(1m) The good faith of any person specified in
subs. (1g) and
(3) shall be presumed in any civil action. Any person who asserts that such a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.
146.37(2)
(2) In determining whether a member of the reviewing or evaluating organization or the medical director has acted in good faith under
sub. (1g), the court shall consider whether the member or medical director has sought to prevent the health care provider or facility and its counsel from examining the documents and records used in the review or evaluation, from presenting witnesses, establishing pertinent facts and circumstances, questioning or refuting testimony and evidence, confronting and cross-examining adverse witnesses or from receiving a copy of the final report or recommendation of the reviewing organization or medical director.
146.37(3)
(3) This section applies to any person acting in good faith who participates in the review or evaluation of the services of a psychiatrist, or facilities or charges for services of a psychiatrist, conducted in connection with any organization, association or program organized or operated to help improve the quality of psychiatric services, avoid improper utilization of psychiatric services or determine reasonable charges for psychiatric services. This immunity includes, but is not limited to, acts such as censuring, reprimanding or taking other disciplinary action against a psychiatrist for unethical or improper conduct.
146.37 Annotation
Anyone who has the good faith belief that they are participating in a valid peer review procedure of a health care provider is entitled to the presumption of good faith under sub. (1g) and is immune from liability unless the presumption is overcome. Limjoco v. Schenck,
169 Wis. 2d 703,
486 N.W.2d 567 (Ct. App. 1992).
146.37 Annotation
Person reviewing peer can be found to have acted in bad faith even if procedural rights under (2) were not denied, but whether procedural rights were denied is factor which must be considered in determination of "good faith". Qasem v. Kozarek,
716 F.2d 1172 (1983).
146.38
146.38
Health care services review; confidentiality of information. 146.38(1)(a)
(a) "Evaluator" means a medical director or a registered nurse who coordinates review of an emergency medical services program of a health care provider.
146.38(1m)
(1m) No person who participates in the review or evaluation of the services of health care providers or facilities or charges for such services may disclose any information acquired in connection with such review or evaluation except as provided in
sub. (3).
146.38(2)
(2) All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under
s. 804.10 (4) or otherwise except as provided in
sub. (3). No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under
s. 804.10 (4) or use in any civil action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.
146.38(3)
(3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld unless the patient has granted permission to disclose identity, in the following circumstances:
146.38(3)(a)
(a) To the health care provider or facility whose services are being reviewed or evaluated, upon the request of such provider or facility;
146.38(3)(b)
(b) To any person with the consent of the health care provider or facility whose services are being reviewed or evaluated;
146.38(3)(c)
(c) To the person requesting the review or evaluation, for use solely for the purpose of improving the quality of health care, avoiding the improper utilization of the services of health care providers and facilities, and determining the reasonable charges for such services;
146.38(3)(d)
(d) In a report in statistical form. The report may identify any provider or facility to which the statistics relate;
146.38(3)(dm)
(dm) With regard to an action under
s. 895.70, to a court of record after issuance of a subpoena;
146.38(3)(e)
(e) With regard to any criminal matter, to a court of record, in accordance with
chs. 885 to
895 and after issuance of a subpoena; and
146.38(3)(f)
(f) To the appropriate examining or licensing board or agency, when the organization or evaluator conducting the review or evaluation determines that such action is advisable.
146.38(4)
(4) Any person who discloses information or releases a record in violation of this section, other than through a good faith mistake, is civilly liable therefor to any person harmed by the disclosure or release.
146.38 Annotation
Conclusions of hospital governing body, based on records and conclusions of peer review committees, were not privileged under this section. State ex rel. Good Samaritan v. Moroney,
123 Wis. 2d 89,
365 N.W.2d 887 (Ct. App. 1984).
146.38 Annotation
Methodology for determining privileged records under (2) outlined. Franzen v. Children's Hospital,
169 Wis. 2d 366,
485 N.W.2d 603 (Ct. App. 1992).
146.38 Annotation
Methodology for determining privileged communications under sub. (1m) 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).
146.40
146.40
Instructional programs for nurse's aides; reporting client abuse. 146.40(1)(ad)
(ad) "Client" means a person who receives services from an entity.
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)(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)(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
subch. XI of ch. 440 or
ch. 441,
448,
449,
450,
451,
455 or
459 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)(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).
