2005 WISCONSIN ACT
An Act to repeal 146.37; to amend 146.55 (7), 187.33 (3) (a) 5., 187.43 (3) (a) 5., 655.27 (1m) (b) and 655.27 (5) (a) 1. and 2.; and to repeal and recreate 146.38 of the statutes; relating to: confidentiality of health care review records and immunity.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
SB578,1
Section
1. 146.37 of the statutes is repealed.
SB578,2
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2. 146.38 of the statutes is repealed and recreated to read:
146.38 Health care quality improvement activity. (1) Definitions. In this section:
(a) “Adverse action" means any action or recommendation to reduce, restrict, suspend, deny, revoke, or fail to renew any of the following:
1. A health care entity's clinical privileges or clinical practice authority at a hospital or other health care entity.
2. A health care entity's membership on a medical staff that is organized under by-laws or in another health care entity.
3. A health care entity's participation in a defined network plan, as defined in s. 609.01 (1b).
4. The credentialing, accreditation, licensure, registration, approval, or certification of a health care entity.
(b) “Health care entity" means any of the following:
1. A health care provider, as defined in s. 146.81 (1); an ambulatory surgery center as defined in s. 153.01 (1); a home health agency, as defined in s. 50.49 (1) (a); a home health aide, as defined in s. 146.40 (1) (bm); a hospice aide, as defined in s. 146.40 (1) (bp); a nurse's assistant, as defined in s. 146.40 (1) (d); an ambulance service provider, as defined in s. 146.50 (1) (c); an emergency medical technician, as defined in s. 146.50 (1) (e); a first responder, as defined in s. 146.50 (1) (hm); or any other person who is licensed, certified, approved, or registered to provide health care services, including mental health services.
2. An individual who is enrolled in an education or training program that the individual must complete in order to obtain credentials required of an individual under subd. 1.
3. A person who is certified as a provider of medical assistance under s. 49.45 (2) (a) 11.
4. A parent organization, subsidiary, or affiliate of a person described under subd. 1. or 3.
(d) “Quality improvement activity" means an evaluation, review, study, assessment, investigation, recommendation, monitoring, corrective action, adverse action, or any other action, which may include one-time, continuous, or periodic data collection, relating to any of the following subjects:
1. The quality of care provided by a health care entity or the quality of services provided by a health care entity that have an impact on care.
2. Morbidity or mortality related to a health care entity.
3. The qualification, competence, conduct, or performance of a health care entity.
4. The cost or use of health care services and resources of a health care entity.
5. Compliance with applicable legal, ethical, or behavioral standards for a health care entity.
6. Compliance with credentialing, accreditation, or regulatory standards for a health care entity and performance of credentialing, accreditation, or regulatory activities.
7. The accreditation, licensure, registration, certification, approval, or credentialing of a health care entity.
(e) “Records" includes minutes, files, notes, reports, statements, memoranda, databases, findings, work products, and images, regardless of the type of communications medium or form, including oral communications, and whether in statistical form or otherwise.
(f) “State agency" means a department, board, examining board, affiliated credentialing board, commission, independent agency, council, or office in the executive branch of state government.
(2) Immunity for acts or omissions. (a) No person acting in good faith who participates in a quality improvement activity to which sub. (3) applies is liable for civil damages as a result of any act or omission by the person in the course of the quality improvement activity.
(b) The good faith of any person participating in a quality improvement activity to which sub. (3) applies shall be presumed in any civil action. Any person who asserts that a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.
(3) Confidentiality and privilege. (a) Except as provided in sub. (4) and in criminal proceedings, all of the following are confidential and privileged; are not subject to discovery, subpoena, or any other means of legal compulsion requiring release or permitting inspection, including compulsion by a state agency, in any civil or administrative action or proceeding; and are not admissible as evidence in any civil or administrative action or proceeding:
1. Records and information contained in records that are created, collected, reported, aggregated, or organized by any person as part of a quality improvement activity that is conducted by any person, organization, department, governing body, or committee, including a committee with representatives from multiple persons, organizations, departments, or governing bodies, that is any of the following:
a. A person that conducts a quality improvement activity as required or authorized by state or federal law, as a condition of accreditation, or under a bylaw, resolution, or policy; or another person who acts on that person's behalf. This subd. 1. a. does not apply to a state agency.
b. A person who is charged, authorized, or directed by a person described in subd. 1. a. to conduct the quality improvement activity.
2. A request for records or information made as part of a quality improvement activity described under subd. 1. by a person conducting the quality improvement activity.
3. Notice to a health care entity that the entity is or will be the subject of a quality improvement activity described under subd. 1.
(b) Except as provided in sub. (4) (cm) and (g), the confidentiality and privilege afforded under par. (a) is not waived by unauthorized or authorized disclosure.
(c) Records described under par. (a) 1. are not subject to inspection or copying under s. 19.35 (1).
(4) Exceptions to confidentiality and privilege. (a) Subsection (3) does not apply to records or information created apart from a quality improvement activity that are maintained by or for a health care entity for the particular purpose of diagnosing, treating, or documenting care provided to an individual patient.
(an) Subsection (3) does not apply to the release to or inspection by a state agency of records or information created apart from a quality improvement activity that are maintained by or for a health care entity for a purpose other than as specified under par. (a) if the records or information are not otherwise available. A state agency may introduce such records or information into evidence in a civil or administrative action or proceeding.
(ar) Any person who testifies during or participates in a quality improvement activity to which sub. (3) applies may testify in any civil or administrative action or proceeding as to information within his or her knowledge, but may not testify as to information obtained solely through his or her participation in the quality improvement activity and may not testify as to any conclusion of the quality improvement activity.
(b) Subsection (3) does not prohibit disclosing that a reduction, restriction, suspension, denial, revocation, or failure to renew any item under sub. (1) (a) 1. to 4. has occurred.
(cm) A person required by state or federal law to report records or information or make records or information accessible to a law enforcement or other governmental agency may report or make accessible records or information to which sub. (3) (a) or (b) applies to comply with the reporting or access requirement. A law enforcement or other governmental agency may introduce records or information received under this paragraph into evidence in a civil or administrative action or proceeding and may disclose such records or information to another law enforcement or other governmental agency.
(d) If a person takes an adverse action against a health care entity or notifies a health care entity of a proposed adverse action against the health care entity as part of a quality improvement activity to which sub. (3) applies, the person shall, upon request by the health care entity, disclose to the health care entity any records in the person's possession relating to the adverse action or proposed adverse action. Records relating to the adverse action are admissible in any civil or administrative action or proceeding in which the health care entity contests the adverse action. A person who has authority to take an adverse action against a health care entity as part of a quality improvement activity to which sub. (3) applies may at any time disclose to the health care entity records relating to a proposed adverse action against the health care entity.
(e) A person under sub. (3) (a) 1. a. conducting a quality improvement activity may disclose the records and information that are confidential and privileged under sub. (3).
(f) A person under sub. (3) (a) 1. b. conducting a quality improvement activity may disclose the records and information that are confidential and privileged under sub. (3) if there is written authorization to make the disclosure from whoever charged, authorized, or directed the person to conduct the quality improvement activity.
(g) The confidentiality and privilege afforded to records under sub. (3) does not apply to records that are disclosed to the general public under par. (e) or (f).
(h) A person planning an activity that would be a quality improvement activity may in advance of the activity designate in writing that sub. (3) does not apply to the records and information created, collected, reported, aggregated, or organized by any person as part of the designated activity.
(5) Any person who discloses information or releases a record in violation of sub. (3), other than through a good faith mistake, is civilly liable to any person harmed by the disclosure or release.
(6) Construction. This section shall be liberally construed in favor of identifying records and information as confidential, privileged, and inadmissible as evidence.
SB578,3
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3. 146.55 (7) of the statutes is amended to read:
146.55 (7) Insurance. A physician who participates in an emergency medical services program under this section or as required under s. 146.50 shall purchase health care liability insurance in compliance with subch. III of ch. 655, except for those acts or omissions of a physician who, as a medical director, reviews as defined in s. 146.50 (1) (j), conducts a quality improvement activity relating to the performance of emergency medical technicians or ambulance service providers, as specified under s. 146.37 (1g) 146.38 (2).
SB578,4
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4. 187.33 (3) (a) 5. of the statutes is amended to read:
187.33 (3) (a) 5. Proceedings based upon a cause of action for which the volunteer is immune from liability under s. 146.31 (2) and (3), 146.37 146.38 (2), 895.44, 895.48, 895.482, 895.51, or 895.52.
SB578,5
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5. 187.43 (3) (a) 5. of the statutes is amended to read:
187.43 (3) (a) 5. Proceedings based upon a cause of action for which the volunteer is immune from liability under s. 146.31 (2) and (3), 146.37 146.38 (2), 895.44, 895.48, 895.482, 895.51, or 895.52.
SB578,6
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6. 655.27 (1m) (b) of the statutes is amended to read:
655.27 (1m) (b) A health care provider who engages in the activities described in s. 146.37 (1g) and (3) a quality improvement activity under 146.38 shall be liable for not more than the limits expressed under s. 655.23 (4) or the maximum liability limit for which the health care provider is insured, whichever limit is greater, if he or she is found to be liable under s. 146.37 146.38, and the fund shall pay the excess amount, unless the health care provider is found not to have acted in good faith during those activities and the failure to act in good faith is found by the trier of fact, by clear and convincing evidence, to be both malicious and intentional.
SB578,7
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7. 655.27 (5) (a) 1. and 2. of the statutes are amended to read:
