Amendment ASA1-AB139

LRBs0179/1

PJH:kjf:nwn

2007 - 2008 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2007 ASSEMBLY BILL 139

December 19, 2007 - Offered by Representative Wasserman.

AB139-ASA1,1,4 An Act to amend 20.916 (9) (f) 1., 979.025 (1), 979.08 (7) and 979.10 (1) (a) 2.; and to create 15.07 (1) (b) 24., 15.07 (3) (bm) 7., 15.145 (5), 51.30 (4) (b) 23g., 51.30 (4) (b) 23r., 146.82 (2) (a) 22., 146.82 (2) (a) 23. and 979.028 of the statutes; relating to: review of deaths at correctional institutions.

Analysis by the Legislative Reference Bureau

Under current law, if a person dies while confined in a correctional facility, the coroner or medical examiner for the county where the death occurred must conduct an autopsy. In addition, the person in charge of the facility is required to notify the appropriate relative of the inmate of the death. The Department of Corrections (DOC) must also provide the relative with written notification that DOC, upon request, will provide the relative with a copy of the autopsy report or any other report or information regarding the inmate's death.

Separately, current law establishes procedures for inquests, which apply to inmates and noninmates alike. Under current law, if the district attorney has notice that the death of a person may have been the result of a homicide or suicide or may have occurred under unexplained or suspicious circumstances, the district attorney may order an inquest to determine the cause of the person's death. If a coroner or medical examiner has similar knowledge about a person's death, the coroner or medical examiner is required to notify the district attorney of the circumstances surrounding the death and may request that the district attorney order an inquest. The district attorney may order an inquest based on that information and may request that the coroner or medical examiner conduct a preliminary examination and report back to the district attorney. If the district attorney does not order an inquest, the coroner or medical examiner may petition the circuit court to order an inquest.

This substitute amendment expands the scope of the provision requiring autopsies for persons who die while confined in a state correctional facility so that it applies to a person in DOC's custody who dies while temporarily confined in, and under a DOC contract with, a county jail or house of correction.

The substitute amendment also creates an Inmate and Resident Mortality Board, which is composed of nine members and attached to DOC. Under the substitute amendment, if a person in DOC custody dies while in an in-state or out-of-state correctional institution, a county jail, or a house of correction, the board must review the circumstances of the person's death. Within three business days after the person's death, DOC must send a written notice to each member of the board of the death and provide them with a summary of information regarding the death, including the date, time, and place of the death. Upon request, DOC must also provide a board member with the records that are in the custody of DOC (including medical and mental health records) regarding the person who died and with any information obtained as the result of DOC's internal review of the death.

In addition, DOC is required to provide any assistance the Inmate and Resident Mortality Board needs to review the circumstances of the death. Beyond reviewing information from DOC, the board may also review any medical and mental health records of the inmate or resident in the custody of a medical or mental health treatment provider; medical and mental health records in the custody of a law enforcement agency; information obtained by the coroner or medical examiner regarding the death; and information collected as a result of the autopsy.

The substitute amendment requires the board to issue a report regarding its review of an inmate's death within 30 days after the meeting at which the board completes its review and to submit that report to a relative of the deceased person, to members of the appropriate standing committees of the senate and assembly, to the secretary of DOC, and to the district attorney or attorney general, if appropriate. The substitute amendment also requires the board to submit to DOC any recommendations that it has regarding medical and other prison procedures, and rules to implement them, based on the board's review of the death. If the board determines during its review of a person's death that a medical provider failed to provide appropriate, proper, and necessary medical care, the board is required under the substitute amendment to prepare and forward a complaint to the appropriate credentialing board.

Meetings of the Inmate and Resident Mortality Board are not subject to the Open Meetings Law. Records prepared by the board are not subject to the Open Records Law.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB139-ASA1, s. 1 Section 1. 15.07 (1) (b) 24. of the statutes is created to read:

AB139-ASA1,3,3 15.07 (1) (b) 24. The members of the inmate and resident mortality board appointed under s. 15.145 (5).

AB139-ASA1, s. 2 Section 2. 15.07 (3) (bm) 7. of the statutes is created to read:

AB139-ASA1,3,6 15.07 (3) (bm) 7. The inmate and resident mortality board shall meet on the call of the chairperson or a majority of the board's members.

AB139-ASA1, s. 3 Section 3. 15.145 (5) of the statutes is created to read:

AB139-ASA1,4,6 15.145 (5) Inmate and resident mortality board. There is created in the department of corrections an inmate and resident mortality board consisting of 9 members appointed for 4-year terms. Five of the members shall be appointed by the governor and shall include one physician from the University of Wisconsin School of Medicine and Public Health, one physician from the Medical College of Wisconsin, one physician from a health care provider other than the University of Wisconsin School of Medicine and Public Health or the Medical College of Wisconsin, one registered nurse employed either by a private health maintenance organization or by a private hospital, and one member who does not represent any of the foregoing entities and who is not employed by a state agency. The other 4 members of the board shall be appointed by the secretary of corrections and shall be a warden of a state correctional facility, a manager of a unit within a state correctional facility that provides the health services to inmates, a health care provider who is employed by the department of corrections, and a correctional officer who shall be from a list provided to the secretary by the labor organization recognized or certified to represent the employees in the collective bargaining unit that represents correctional officers. At least one member of the board shall be a physician who is a pathologist with subspecialty training in forensic pathology and who is certified by the American Board of Pathology.

AB139-ASA1, s. 4 Section 4. 20.916 (9) (f) 1. of the statutes is amended to read:

AB139-ASA1,4,13 20.916 (9) (f) 1. `Scheduled air travel.' Reimbursement for air travel shall be limited to the lowest appropriate airfare, as determined by the director of the office of state employment relations. An employee may be reimbursed for air travel at a rate other than the lowest appropriate airfare only if the employee submits a written explanation of the reasonableness of the expense. Members of the inmate and resident mortality board may not receive reimbursement for air travel.

AB139-ASA1, s. 5 Section 5. 51.30 (4) (b) 23g. of the statutes is created to read:

AB139-ASA1,4,16 51.30 (4) (b) 23g. To the inmate and resident mortality board to enable it to review the death of an inmate or resident under s. 978.028.

AB139-ASA1, s. 6 Section 6. 51.30 (4) (b) 23r. of the statutes is created to read:

AB139-ASA1,4,19 51.30 (4) (b) 23r. By the inmate and resident mortality board under s. 979.028 (4), (5), or (6).

AB139-ASA1, s. 7 Section 7. 146.82 (2) (a) 22. of the statutes is created to read:

AB139-ASA1,4,22 146.82 (2) (a) 22. To the inmate and resident mortality board to enable it to review the death of an inmate or resident under s. 979.028.

AB139-ASA1, s. 8 Section 8. 146.82 (2) (a) 23. of the statutes is created to read:

AB139-ASA1,5,3 146.82 (2) (a) 23. By the inmate and resident mortality board under s. 979.028 (4), (5), or (6). The board is not required to receive a request in order to release patient health care records under this subdivision.

AB139-ASA1, s. 9 Section 9. 979.025 (1) of the statutes is amended to read:

AB139-ASA1,5,16 979.025 (1) Inmate or resident confined to an institution in this state. If an individual dies while he or she is in the legal custody of the department and dies while confined to a state correctional facility located in this state institution, as defined in s. 301.01 (4), but excluding any institution that meets the criteria under s. 302.01 solely because of its status under s. 301.046 or 301.048 (4) (b), or while confined to a county jail or house of correction pursuant to a contract under s. 302.27, the coroner or medical examiner of the county where the death occurred shall perform an autopsy on the deceased individual. If the coroner or medical examiner who performs the autopsy determines that the individual's death may have been the result of any of the situations that would permit the district attorney to order an inquest under s. 979.04 (1), the coroner or medical examiner shall follow the procedures under s. 979.04 (2).

AB139-ASA1, s. 10 Section 10. 979.028 of the statutes is created to read:

AB139-ASA1,5,18 979.028 Review of an inmate's or resident's death. (1) In this section:

AB139-ASA1,5,19 (a) "Patient health care records" has the meaning given in s. 146.81 (4).

AB139-ASA1,5,20 (b) "Treatment records" has the meaning given in s. 51.30 (1) (b).

AB139-ASA1,5,25 (2) The inmate and resident mortality board shall review the circumstances of the death of every individual who is subject to an autopsy under s. 979.025. A member of the board shall disqualify himself or herself from any discussion regarding a specific death if he or she determines that he or she cannot act in an impartial manner regarding that death.

AB139-ASA1,6,12 (3) (a) Within 3 business days, as defined in s. 421.301 (6), after the death of a person whose death requires the performance of an autopsy under s. 979.025, the secretary of corrections or the secretary's designee shall send a written notice to every member of the inmate and resident mortality board of the death. The written notification shall include a summary of information related to the person's death, including the date, time, and place of the death. At the request of any board member, the department shall provide the member with the records that are in the custody of the department regarding the person who died, including patient health care and treatment records, and any information obtained as a result of any departmental internal review of the death. The department shall cooperate with the board and provide any assistance the board requests to review the circumstances of the death of the inmate or resident.

AB139-ASA1,6,17 (b) 1. If the board, while performing its duties, requests patient health care or treatment records that are in the custody of a health care provider, as defined in s. 146.81 (1), the department of health and family services, a county department under s. 51.42 or 51.437 or its staff, or a treatment facility, as defined in s. 51.01 (19), the records shall be provided to the board for its review.

AB139-ASA1,6,20 2. If the board, while performing its duties, requests patient health care or treatment records that are in the custody of a law enforcement agency, the agency shall provide the records to the board for its review.

AB139-ASA1,6,24 3. Upon request by the board, a coroner or medical examiner shall provide the board any information that it has obtained regarding the death of the inmate or resident. The board may also review any information collected through any of the following:

AB139-ASA1,6,25 a. An autopsy performed under s. 979.025.

AB139-ASA1,7,2 b. An inquest ordered under s. 979.04 if the inquest is not secret under s. 979.05 (6).

AB139-ASA1,7,4 c. A secret inquest if a judge or circuit court commissioner has authorized the board to inspect the record of the inquest under s. 979.08 (7).

AB139-ASA1,7,9 (4) (a) Except as provided in sub. (5), within 30 days after the meeting during which the board completes its review of an inmate's or resident's death, the inmate and resident mortality board shall prepare a summary report of the board's review of the inmate's or resident's death and submit that summary report to all of the following:

AB139-ASA1,7,10 1. The appropriate relative of the deceased.

AB139-ASA1,7,11 2. The secretary of corrections.

AB139-ASA1,7,12 3. If appropriate, the attorney general or district attorney.

AB139-ASA1,7,14 4. Notwithstanding s. 13.172 (3), the chairperson and the ranking minority member of the appropriate standing committee of the assembly and senate.

AB139-ASA1,7,17 (b) The board may include patient health care or treatment records in a report prepared under par. (a), but only to the minimum extent necessary to summarize its conclusions regarding the inmate's or resident's death.

AB139-ASA1,7,23 (5) If there is a criminal investigation of an inmate's or resident's death, the board may not issue a final report under sub. (4) regarding the board's review of the inmate's or resident's death until after that criminal investigation is completed. Any report issued before completion of the criminal investigation is preliminary and is subject to modification based on information received as a result of the criminal investigation.

AB139-ASA1,8,8 (6) The inmate and resident mortality board shall make recommendations to the department regarding medical and other prison procedures, based on the board's review of an inmate's or resident's death. The board shall also refer concerns or recommendations to the department related to the performance of staff, including violations by staff of departmental policies, procedures, or work rules related to the circumstances surrounding the death. The inmate and resident mortality board shall prepare and forward a complaint to the appropriate credentialing board, as defined in s. 440.01 (2) (bm), if, during the board's review of an inmate's or resident's death, the board determines that a medical provider failed to provide the appropriate, proper, and necessary medical care.

AB139-ASA1,8,11 (7) Subchapter V of ch. 19 does not apply to meetings of the inmate and resident mortality board. Records prepared under this section are not subject to inspection or copying under s. 19.35 (1).

AB139-ASA1,8,13 (8) Records of any investigation, inquiry, proceeding, or conclusion of the inmate and resident mortality board are confidential under s. 146.38.

AB139-ASA1, s. 11 Section 11. 979.08 (7) of the statutes is amended to read:

AB139-ASA1,8,19 979.08 (7) The record of a secret inquest proceeding shall not be open for inspection unless so ordered by the judge or circuit court commissioner conducting the inquest upon petition by the district attorney or, in a case in which the circumstances of a person's death are reviewed under s. 979.028, the inmate and resident mortality board.

AB139-ASA1, s. 12 Section 12. 979.10 (1) (a) 2. of the statutes is amended to read:

AB139-ASA1,8,24 979.10 (1) (a) 2. The Unless an autopsy is required under s. 979.025 (1), the coroner or medical examiner in the county where the event which caused the death occurred if the death occurred in this state and if the death is the subject of an investigation under s. 979.01; or

AB139-ASA1, s. 13 Section 13. Nonstatutory provisions.

AB139-ASA1,9,8 (1) Notwithstanding the length of terms for the members of the inmate and resident mortality board specified in section 15.145 (5) of the statutes, as created by this act, 2 initial members of the board appointed by the governor and 2 initial members appointed by the secretary of corrections shall be for a term of 4 years; 2 initial members of the board appointed by the governor and one initial member appointed by the secretary of corrections shall be for a term of 3 years; and one initial member of the board appointed by the governor and one initial member appointed by the secretary of corrections shall be for a term of 2 years.

AB139-ASA1,9,9 (End)