LRB-4559/1
RLR:cs:jf
2005 - 2006 LEGISLATURE
February 6, 2006 - Introduced by Senators Kanavas, Roessler, Darling, Cowles
and Erpenbach, cosponsored by Representatives Underheim, Gielow,
Moulton, Krawczyk, Hahn, Wieckert, Hundertmark, Albers, Strachota,
Vruwink and Shilling. Referred to Committee on Health, Children, Families,
Aging and Long Term Care.
SB578,1,4
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:
SB578, s. 1
1Section
1. 146.37 of the statutes is repealed.
SB578, s. 2
2Section
2. 146.38 of the statutes is repealed and recreated to read:
SB578,4,4
3146.38 Health care quality improvement activity. (1) Definitions. In this
4section:
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(a) "Adverse action" means any action or recommendation to reduce, restrict,
6suspend, deny, revoke, or fail to renew any of the following:
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1. A health care entity's clinical privileges or clinical practice authority at a
8hospital or other health care entity.
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12. A health care entity's membership on a medical staff that is organized under
2by-laws or in another health care entity.
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3. A health care entity's participation in a defined network plan, as defined in
4s. 609.01 (1b).
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4. The accreditation, licensure, or certification of a health care entity.
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(b) "Health care entity" means any of the following:
SB578,5,147
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.
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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.
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3. A person who is certified as a provider of medical assistance under s. 49.45
19(2) (a) 11.
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4. A parent organization, subsidiary, or affiliate of a person described under
21subd. 1. or 3.
SB578,5,2522
(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:
SB578,6,2
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.
SB578,6,33
2. Morbidity or mortality related to a health care entity.
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3. The qualification, competence, conduct, or performance of a health care
5entity.
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4. The cost or use of health care services and resources of a health care entity.
SB578,6,87
5. Compliance with applicable legal, ethical, or behavioral standards for a
8health care entity.
SB578,6,139
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.
SB578,6,1414
7. The approval or credentialing of a health care entity.
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(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.
SB578,6,2119
(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.