LRBs0517/1
RLR:cjs:jf
2005 - 2006 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2005 ASSEMBLY BILL 993
February 7, 2006 - Offered by Representative Underheim.
AB993-ASA1,1,4
1An Act to repeal 146.37;
to amend 146.55 (7), 187.33 (3) (a) 5., 187.43 (3) (a)
25., 655.27 (1m) (b) and 655.27 (5) (a) 1. and 2.; and
to repeal and recreate
3146.38 of the statutes;
relating to: confidentiality of health care review records
4and immunity.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB993-ASA1, s. 2
6Section
2. 146.38 of the statutes is repealed and recreated to read:
AB993-ASA1,1,8
7146.38 Health care quality improvement activity. (1) Definitions. In this
8section:
AB993-ASA1,1,109
(a) "Adverse action" means any action or recommendation to reduce, restrict,
10suspend, deny, revoke, or fail to renew any of the following:
AB993-ASA1,1,1211
1. A health care entity's clinical privileges or clinical practice authority at a
12hospital or other health care entity.
AB993-ASA1,2,2
12. A health care entity's membership on a medical staff that is organized under
2by-laws or in another health care entity.
AB993-ASA1,2,43
3. A health care entity's participation in a defined network plan, as defined in
4s. 609.01 (1b).
AB993-ASA1,2,55
4. The accreditation, licensure, or certification of a health care entity.
AB993-ASA1,2,66
(b) "Health care entity" means any of the following:
AB993-ASA1,2,147
1. A health care provider, as defined in s. 146.81 (1), an ambulatory surgery
8center as defined in s. 153.01 (1), a home health agency, as defined in s. 50.49 (1) (a),
9a home health aide, as defined in s. 146.40 (1) (bm), a hospice aide, as defined in s.
10146.40 (1) (bp), a nurse's assistant, as defined in s. 146.40 (1) (d), an ambulance
11service provider, as defined in s. 146.50 (1) (c), an emergency medical technician, as
12defined in s. 146.50 (1) (e), a first responder, as defined in s. 146.50 (1) (hm), or any
13other person who is licensed, certified, or registered to provide health care services
14including mental health services.
AB993-ASA1,2,1715
2. An individual who is enrolled in an education or training program that the
16individual must complete in order to obtain credentials required of an individual
17under subd. 1.
AB993-ASA1,2,1918
3. A person who is certified as a provider of medical assistance under s. 49.45
19(2) (a) 11.
AB993-ASA1,2,2120
4. A parent organization, subsidiary, or affiliate of a person described under
21subd. 1. or 3.
AB993-ASA1,2,2522
(d) "Quality improvement activity" means an evaluation, review, study,
23assessment, investigation, recommendation, monitoring, corrective action, adverse
24action, or any other action, which may include one-time, continuous, or periodic data
25collection, relating to any of the following subjects:
AB993-ASA1,3,2
11. The quality of care provided by a health care entity or the quality of services
2provided by a health care entity that have an impact on care.
AB993-ASA1,3,33
2. Morbidity or mortality related to a health care entity.
AB993-ASA1,3,54
3. The qualification, competence, conduct, or performance of a health care
5entity.
AB993-ASA1,3,66
4. The cost or use of health care services and resources of a health care entity.
AB993-ASA1,3,87
5. Compliance with applicable legal, ethical, or behavioral standards for a
8health care entity.
AB993-ASA1,3,119
6. Compliance with credentialing, accreditation, or regulatory standards for a
10health care entity and performance of credentialing, accreditation, or regulatory
11activities.
AB993-ASA1,3,1212
7. The approval or credentialing of a health care entity.
AB993-ASA1,3,1613
(e) "Records" includes minutes, files, notes, reports, statements, memoranda,
14databases, findings, work products, and images, regardless of the type of
15communications medium or form, including oral communications, and whether in
16statistical form or otherwise.
AB993-ASA1,3,1917
(f) "State agency" means a department, board, examining board, affiliated
18credentialing board, commission, independent agency, council, or office in the
19executive branch of state government.
AB993-ASA1,3,23
20(2) Immunity for acts or omissions. (a) No person acting in good faith who
21participates in a quality improvement activity described under sub. (3) (a) 1. is liable
22for civil damages as a result of any act or omission by the person in the course of the
23quality improvement activity.
AB993-ASA1,4,224
(b) The good faith of any person participating in a quality improvement activity
25described under sub. (3) (a) 1. shall be presumed in any civil action. Any person who
1asserts that a person has not acted in good faith has the burden of proving that
2assertion by clear and convincing evidence.
AB993-ASA1,4,7
3(3) Confidentiality and privilege. (a) Except as provided in sub. (4), all of the
4following are confidential and privileged; are not subject to discovery, subpoena, or
5any other means of legal compulsion requiring release or permitting inspection,
6including compulsion by a state agency; and are not admissible as evidence in any
7civil, criminal, or other judicial or administrative proceeding:
AB993-ASA1,4,128
1. Records and information contained in records that are created, collected,
9reported, aggregated, or organized by any person as part of a quality improvement
10activity that is conducted by any person, organization, department, governing body,
11or committee, including a committee with representatives from multiple persons,
12organizations, departments, or governing bodies, that is any of the following:
AB993-ASA1,4,1613
a. A person, other than a state agency, who is required or authorized by state
14or federal law, as a condition of accreditation, or under a bylaw, resolution, or policy
15to conduct the quality improvement activity, or another person who acts on that
16person's behalf.
AB993-ASA1,4,1817
b. A person who is charged, authorized, or directed by a person described in
18subd. 1. a. to conduct the quality improvement activity.
AB993-ASA1,4,2119
2. A request for records or information made as part of a quality improvement
20activity described under subd. 1. by a person conducting the quality improvement
21activity.
AB993-ASA1,4,2322
3. Notice to a health care entity that the entity is or will be the subject of a
23quality improvement activity described under subd. 1.
AB993-ASA1,5,3
1(b) Except as provided in sub. (4) (c) and(g), the confidentiality and privilege
2afforded to records and information under par. (a) is not waived by unauthorized or
3authorized disclosure of records or information.
AB993-ASA1,5,54
(c) Records relating to a quality improvement activity described under par. (a)
51. are not subject to inspection or copying under s. 19.35 (1).
AB993-ASA1,5,9
6(4) Exceptions to confidentiality and privilege. (a)
Subsection (3) does not
7apply to records or information created apart from a quality improvement activity
8that are maintained by or for a health care entity for the particular purpose of
9diagnosing, treating, or documenting care provided to an individual patient.
AB993-ASA1,5,1210
(b) Subsection (3) does not prohibit disclosing that a reduction, restriction,
11suspension, denial, revocation, or failure to renew any item under sub. (1) (a) 1. to
124. has occurred.
AB993-ASA1,5,1613
(c) A person mandated by Wisconsin or federal law to report may disclose a
14record or information from a record that is confidential and privileged under sub. (3)
15to make the mandated report. Subsection (3) does not apply to a record that has been
16disclosed under this paragraph or to information in the record.
AB993-ASA1,6,217
(d) If a person takes an adverse action against a health care entity as part of
18a quality improvement activity described under sub. (3) (a) 1., or notifies the health
19care entity of a proposed adverse action, the person shall, upon request by the health
20care entity, disclose to the health care entity any records in the person's possession
21relating to the adverse action or proposed adverse action. Records relating to the
22adverse action are admissible in any criminal, civil, or other judicial or
23administrative proceeding in which the health care entity contests the adverse
24action. A person who has authority to take an adverse action against a health care
25entity as part of a quality improvement activity described under sub. (3) (a) 1. may
1at any time disclose to the health care entity records relating to a proposed adverse
2action against the health care entity.
AB993-ASA1,6,53
(e) A person conducting a quality improvement activity pursuant to sub. (3) (a)
41. a. may disclose the records and information that are confidential and privileged
5pursuant to sub. (3).
AB993-ASA1,6,106
(f) A person conducting a quality improvement activity pursuant to sub. (3) (a)
71. b. may disclose the records and information that are confidential and privileged
8pursuant to sub. (3) if there is written authorization to make the disclosure from the
9person that charged, authorized, or directed the person to conduct the quality
10improvement activity.
AB993-ASA1,6,1311
(g) The confidentiality and privilege afforded to records and information under
12sub. (3) is waived for records that are publicly disclosed under par. (e) or (f) to persons
13that are not health care entities.
AB993-ASA1,6,1714
(h) A person planning an activity that would be a quality improvement activity
15under sub. (3) (a) 1. may in advance of the activity designate in writing that sub. (3)
16shall not apply to the records and information created, collected, reported,
17aggregated, or organized by any person as part of the designated activity.
AB993-ASA1,6,20
18(5) Any person who discloses information or releases a record in violation of
19sub. (3), other than through a good faith mistake, is civilly liable to any person
20harmed by the disclosure or release.
AB993-ASA1,6,23
21(6) Construction. This section shall be liberally construed in favor of
22identifying records and information as confidential, privileged, and inadmissible as
23evidence.
AB993-ASA1,7,7
1146.55
(7) Insurance. A physician who participates in an emergency medical
2services program under this section or as required under s. 146.50 shall purchase
3health care liability insurance in compliance with subch. III of ch. 655, except for
4those acts or omissions of a physician who, as a medical director,
reviews as defined
5in s. 146.50 (1) (j), conducts a quality improvement activity relating to the
6performance of emergency medical technicians or ambulance service providers, as
7specified under s.
146.37 (1g) 146.38 (2).
AB993-ASA1, s. 4
8Section
4. 187.33 (3) (a) 5. of the statutes is amended to read: