2005 - 2006 LEGISLATURE
February 7, 2006 - Introduced by Representatives Underheim, Gielow, Moulton,
Krawczyk, Hahn, Wieckert, Hundertmark, Albers, Strachota, Vruwink and
Shilling, cosponsored by Senators Kanavas, Roessler, Darling, Cowles and
Erpenbach. Referred to Committee on Health.
AB993,1,4
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.
Analysis by the Legislative Reference Bureau
Current law confidentiality and peer review provisions
Under current law a person who participates in a review or evaluation of the
services of a health care provider (a review or evaluation) may not disclose any
information acquired in connection with the review or evaluation. Further, records
that an organization or evaluator keeps of investigations, inquiries, proceedings and
conclusions in connection with a review or evaluation are confidential and may not
be used in a civil action for personal injuries against the health care provider. (An
"evaluator" is defined as a medical director or registered nurse who coordinates
review of an emergency medical services program. "Organization" is not defined.
Current law specifies that three particular types of providers are "health care
providers," but does not otherwise define "health care provider.")
Current law provides several exceptions to the confidentiality provisions for
records and information related to reviews or evaluations, which allow release of
information or records to the health care provider who is the subject of the review;
to others if the subject of the review or evaluation consents to release; and to the
person who requested the review, for use for certain purposes, including improving
the quality of health care. Other exceptions to confidentiality allow the release of
information that is subpoenaed in a criminal action, the release of information to an
examining or licensing board, and the release of information in a statistical report.
Current law provides that information or records presented during a review or
evaluation are not immune from discovery or use in a civil action simply because they
were presented for the review or evaluation. Further, a person who participates in
a review or evaluation may testify in a civil action as to matters within his or her
knowledge, but may not testify regarding information obtained through the review
or evaluation or regarding conclusions of the review or evaluation.
The courts have ruled that records of a review or evaluation conducted by an
organization are confidential only if: 1) the review or evaluation is part of a program
organized and operated to improve the quality of care of a health care provider; and
2) the person or entity conducting the review or evaluation is part of, or acting on
behalf of, a group with relatively constant membership, officers, a purpose, and a set
of regulations. The courts have found that the following types of information and
records are not confidential or protected: information learned by a hospital
administrator in investigating care provided to a patient in a particular incident; a
physician's application for reappointment to a hospital staff; information as to
whether a hospital investigated a physician or whether the physician's medical
privileges were ever limited; and a letter written by a doctor on staff at a hospital to
the supervisor of the hospital's residency program that concerned an investigation
initiated by the hospital of a resident's performance during a particular incident (in
this case, the hospital peer review committee was not convened to investigate).
Courts have determined that a review or evaluation by a hospital credentials
committee or by the Joint Commission on Accreditation of Healthcare Organizations
(a private accrediting body) is confidential and protected.
Finally, current law provides that a person who discloses records or information
of a review or evaluation in violation of the confidentiality or privilege provisions is
civilly liable for the disclosure.
Bill provisions concerning confidentiality and privilege
This bill repeals the confidentiality and privilege provisions related to a review
or evaluation of the services of a health care provider and creates a new
confidentiality and privilege provision for records and information related to a
quality improvement activity. "Quality improvement activity" is defined as any
action, such as a review, study, investigation, corrective action, or recommendation,
relating to a health care entity and concerning certain topics, including: quality of
care; qualifications, competence, and performance of providers; compliance with
credentialing, accreditation, or regulatory standards; compliance with legal, ethical,
or behavioral standards; utilization of resources; costs; the approval or credentialing
of a health care provider or organization; and morbidity or mortality.
Protection afforded. The bill provides several forms of protection for records of
quality improvement activities. Under the bill, records of quality improvement
activities, and information in those records, are confidential and privileged, are not
subject to discovery, subpoena, or other means of legal compulsion requiring release
or permitting inspection; and are not admissible in evidence in a civil or criminal
action or administrative proceeding.
The protections extend to records or information that is created, collected,
reported, aggregated, or organized as part of a quality improvement activity. The
protections also extend to a request for records or information made as part of a
quality improvement activity and notice to a health care entity that the entity is or
will be the subject of a quality improvement activity. Finally, the protections
generally are not waived by an unauthorized or authorized disclosure of records or
information.
Who is the subject of a quality improvement activity. The bill broadly defines
who may be the subject of a quality improvement activity. Potential subjects or,
"health care entities," include:
1. Individuals who must obtain licensure or some other form of certification
before providing health care services, such as doctors, nurses, pharmacists,
emergency medical technicians, first responders, dieticians, and various therapists.
2. People in training to obtain certification to serve as a health care provider,
such as residents.
3. Organizations that provide health care, such as hospitals, clinics, nursing
homes, home health agencies, and hospices.
4. People or organizations that are certified by the Department of Health and
Family services to provide services under the Medical Assistance program, such as
personal care workers and providers of transportation by specialized medical
vehicle.
5. A parent organization, subsidiary, or affiliate of a health care entity, such as
a company that owns multiple hospitals or clinics.
Who conducts a quality improvement activity. The records of a quality
improvement activity are protected if the person who conducts the activity has a
responsibility by statute, regulation, bylaw, policy, or resolution or as a condition of
accreditation to conduct the activity. Also, records of a quality improvement activity
conducted by a person whom a health care entity has charged to conduct the quality
improvement activity are protected.
Exceptions to confidentiality and privilege. The bill creates several exceptions
to the protections afforded to records and information concerning quality
improvement activities. The bill specifies that records or information created apart
from a quality improvement activity and maintained by a health care entity for the
particular purpose of diagnosing, treating, or documenting care provided to an
individual patient are not protected. The bill provides that a person who is mandated
by federal or state law to report information may disclose quality improvement
records and information in the records to the extent necessary to make the report and
provides that once reported such records or information are no longer confidential
or privileged. Under the bill, a person who, as a result of a quality improvement
activity, takes action to limit or deny a health care entity's ability to serve as a health
care entity must disclose to the health care entity records and information that are
relevant to the action, and such records are admissible in judicial and administrative
proceedings. Further, the bill specifies that the fact that a person took action to limit
or deny a health care entity's ability to serve as a health care entity is not confidential
or privileged information.
The bill allows a person who has a responsibility to conduct a quality
improvement activity to release records of the activity. Also, a person who is charged
by a health care entity to conduct a quality improvement activity may release records
of the activity if the health care entity provides written authorization for release.
Further, the bill provides that if records are widely distributed under these two
exceptions to persons who are not health care providers, the records are no longer
confidential or privileged.
Finally, the bill provides that if a person planning to conduct a quality
improvement activity waives confidentiality and privilege for records of the quality
improvement activity before initiating the activity, then the records are not
confidential or privileged.
The bill does not make a person who discloses records or information of a quality
improvement activity in violation of the confidentiality and privilege provisions
civilly liable for the disclosure.
Immunity provisions
Under current law, a person acting in good faith is immune from civil liability
for acts or omissions taken while participating in a review or evaluation of the
services of health care providers or facilities or of charges for services if the review
or evaluation is conducted in connection with a program organized and operated to
help improve the quality of health care, to avoid improper utilization of services, or
to determine reasonable charges.
The bill provides that a person is immune from civil liability for good faith acts
or omissions taken while participating in a quality review activity described above.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB993, s. 1
1Section
1. 146.37 of the statutes is repealed.
AB993, s. 2
2Section
2. 146.38 of the statutes is repealed and recreated to read:
AB993,4,4
3146.38 Health care quality improvement activity. (1) Definitions. In this
4section:
AB993,4,65
(a) "Adverse action" means any action or recommendation to reduce, restrict,
6suspend, deny, revoke, or fail to renew any of the following:
AB993,4,87
1. A health care entity's clinical privileges or clinical practice authority at a
8hospital or other health care entity.
AB993,5,2
12. A health care entity's membership on a medical staff that is organized under
2by-laws or in another health care entity.
AB993,5,43
3. A health care entity's participation in a defined network plan, as defined in
4s. 609.01 (1b).
AB993,5,55
4. The accreditation, licensure, or certification of a health care entity.
AB993,5,66
(b) "Health care entity" means any of the following:
AB993,5,147
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.
AB993,5,1715
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.
AB993,5,1918
3. A person who is certified as a provider of medical assistance under s. 49.45
19(2) (a) 11.
AB993,5,2120
4. A parent organization, subsidiary, or affiliate of a person described under
21subd. 1. or 3.
AB993,5,2522
(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:
AB993,6,2
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.
AB993,6,33
2. Morbidity or mortality related to a health care entity.
AB993,6,54
3. The qualification, competence, conduct, or performance of a health care
5entity.
AB993,6,66
4. The cost or use of health care services and resources of a health care entity.
AB993,6,87
5. Compliance with applicable legal, ethical, or behavioral standards for a
8health care entity.
AB993,6,139
6. Compliance with credentialing, accreditation, or regulatory standards for a
10health care entity and performance of credentialing, accreditation, or regulatory
11activities, including compliance with or performance of periodic performance
12reviews and related activities for the Joint Commission on Accreditation of
13Healthcare Organizations.
AB993,6,1414
7. The approval or credentialing of a health care entity.
AB993,6,1815
(e) "Records" includes minutes, files, notes, reports, statements, memoranda,
16databases, findings, work products, and images, regardless of the type of
17communications medium or form, including oral communications, and whether in
18statistical form or otherwise.
AB993,6,2119
(f) "State agency" means a department, board, examining board, affiliated
20credentialing board, commission, independent agency, council, or office in the
21executive branch of state government.
AB993,6,25
22(2) Immunity for acts or omissions. (a) No person acting in good faith who
23participates in a quality improvement activity described under sub. (3) (a) 1. is liable
24for civil damages as a result of any act or omission by the person in the course of the
25quality improvement activity.
AB993,7,4
1(b) The good faith of any person participating in a quality improvement activity
2described under sub. (3) (a) 1. shall be presumed in any civil action. Any person who
3asserts that a person has not acted in good faith has the burden of proving that
4assertion by clear and convincing evidence.
AB993,7,9
5(3) Confidentiality and privilege. (a) Except as provided in sub. (4), all of the
6following are confidential and privileged; are not subject to discovery, subpoena, or
7any other means of legal compulsion requiring release or permitting inspection,
8including compulsion by a state agency; and are not admissible as evidence in any
9civil, criminal, or other judicial or administrative proceeding:
AB993,7,1410
1. Records and information contained in records that are created, collected,
11reported, aggregated, or organized by any person as part of a quality improvement
12activity that is conducted by any person, organization, department, single or joint
13committee, governing body, or committee of a governing body that is any of the
14following:
AB993,7,1715
a. A person that has responsibility by statute, regulation, condition of
16accreditation, bylaw, policy, or resolution to conduct the quality improvement
17activity, except for a state agency.
AB993,7,1918
b. A person that is charged by a health care entity to conduct the quality
19improvement activity.
AB993,7,2220
2. A request for records or information made as part of a quality improvement
21activity described under subd. 1. by a person conducting the quality improvement
22activity.
AB993,7,2423
3. Notice to a health care entity that the entity is or will be the subject of a
24quality improvement activity described under subd. 1.
AB993,8,3
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.
AB993,8,54
(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).
AB993,8,9
6(4) Exceptions to confidentiality and privilege. (a)
Subsection (3) does not
7apply to records or information created apart from the 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.
AB993,8,1210
(b) Subsection (3) does not apply to the fact of the failure to renew or the
11reduction, restriction, suspension, denial, or revocation of any thing described under
12sub. (1) (a) 1. to 4.
AB993,8,1613
(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. A record received by a person pursuant to this
16paragraph is not subject to par. (a), (b), (d), (e), (f), (g), or (h) or sub. (3).
AB993,9,217
(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.
AB993,9,53
(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).
AB993,9,106
(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
9health care entity that charged the person to conduct the quality improvement
10activity.
AB993,9,1311
(g) The confidentiality and privilege afforded to records and information under
12sub. (3) is waived for records that are widely disclosed under par. (e) or (f) to persons
13that are not health care entities.
AB993,9,1714
(h) An entity 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.
AB993,9,20
18(5) Construction. This section shall be liberally construed in favor of
19identifying records and information as confidential, privileged, and inadmissible as
20evidence.
AB993, s. 3
21Section
3. 146.55 (7) of the statutes is amended to read:
AB993,9,2522
146.55
(7) Insurance. A physician who participates in an emergency medical
23services program under this section or as required under s. 146.50 shall purchase
24health care liability insurance in compliance with subch. III of ch. 655, except for
25those acts or omissions of a physician who, as a medical director,
reviews as defined
1in s. 146.50 (1) (j), conducts a quality improvement activity relating to the
2performance of emergency medical technicians or ambulance service providers, as
3specified under s.
146.37 (1g) 146.38 (2).
AB993, s. 4
4Section
4. 187.33 (3) (a) 5. of the statutes is amended to read:
AB993,10,75
187.33
(3) (a) 5. Proceedings based upon a cause of action for which the
6volunteer is immune from liability under s. 146.31 (2) and (3),
146.37 146.38 (2),
7895.44, 895.48, 895.482, 895.51
, or 895.52.
AB993, s. 5
8Section
5. 187.43 (3) (a) 5. of the statutes is amended to read:
AB993,10,119
187.43
(3) (a) 5. Proceedings based upon a cause of action for which the
10volunteer is immune from liability under s. 146.31 (2) and (3),
146.37 146.38 (2),
11895.44, 895.48, 895.482, 895.51
, or 895.52.
AB993, s. 6
12Section
6. 655.27 (1m) (b) of the statutes is amended to read:
AB993,10,2013
655.27
(1m) (b) A health care provider who engages in
the activities described
14in s. 146.37 (1g) and (3) a quality improvement activity under 146.38 shall be liable
15for not more than the limits expressed under s. 655.23 (4) or the maximum liability
16limit for which the health care provider is insured, whichever limit is greater, if he
17or she is found to be liable under s.
146.37 146.38, and the fund shall pay the excess
18amount, unless the health care provider is found not to have acted in good faith
19during those activities and the failure to act in good faith is found by the trier of fact,
20by clear and convincing evidence, to be both malicious and intentional.
AB993, s. 7
21Section
7. 655.27 (5) (a) 1. and 2. of the statutes are amended to read: