LRB-3671/3
RLR&RPN:cs:rs
2007 - 2008 LEGISLATURE
February 21, 2008 - Introduced by Representatives Newcomer, Moulton, Vukmir,
Soletski, Vruwink, Albers, Gunderson, Hahn, LeMahieu, M. Williams,
Montgomery, Musser, Nygren, A. Ott, Strachota, Suder and Vos,
cosponsored by Senators Cowles, Darling, Kanavas, Kapanke, Kedzie and
Olsen. Referred to Committee on Health and Healthcare Reform.
AB863,1,10
1An Act to repeal 146.38 (3) (d), 146.38 (3) (e), 940.285 (2) (a) 3., 940.295 (1) (km)
2and 940.295 (3) (a) 3.;
to amend 146.38 (1m), 146.38 (2), 940.08 (1), 940.24 (1),
3940.285 (2) (b) 1g., 940.285 (2) (b) 1r., 940.285 (2) (b) 4., 940.285 (2) (b) 5.,
4940.295 (3) (b) 1g., 940.295 (3) (b) 3., 940.295 (3) (b) 4. and 940.295 (3) (b) 5.; and
5to create 146.38 (1) (bm), 146.38 (2m), 146.38 (3m), 904.16, 940.08 (3) and
6940.24 (3) of the statutes;
relating to: confidentiality of health care services
7reviews; use as evidence of information regarding health care providers;
8homicide or injury by negligent handling of a dangerous weapon, explosives, or
9fire; criminal abuse of individuals at risk; and criminal abuse and neglect of
10patients and residents.
Analysis by the Legislative Reference Bureau
Confidentiality of health care services reviews
Current law provides that a person who participates in a review or evaluation
of services provided by a health care provider or facility, or of charges for such
services, (a review) generally may not disclose information acquired in connection
with the review. Further, the records that a reviewer or evaluator creates of
investigations, inquiries, proceedings, and conclusions conducted for the review
(review records) generally may not be released. Under current law, review records
may not be used in a civil action for personal injuries against the health care provider
or health care facility.
Current law contains several exceptions to confidentiality of review records and
information acquired in connection with a review, which require disclosure of such
records and information under the following circumstances: to a health care provider
or facility whose services are reviewed, or to any person with the consent of that
provider or facility; to the person who requested the review, for use only for the
purpose of improving the quality of health care, avoiding improper utilization of
health care services, and determining reasonable charges for services; to a court
upon issuance of a subpoena in a criminal action; to an examining or licensing board
or agency, when the organization or evaluator conducting the review determines that
such action is advisable; and in a report in statistical format.
This bill makes the following changes to confidentiality provisions for health
care service reviews:
1. The bill repeals the exception to confidentiality that requires release of
review records and information acquired in connection with a review upon issuance
of a subpoena in a criminal action.
2. The bill provides that review records may not be used in any civil or criminal
action against any health care provider or health care facility.
3. The bill provides that a person who participates in a review may not disclose
any incident report that is made to notify a reviewer of an incident, practice, or other
situation that becomes the subject of a review. Further the bill prohibits using such
an incident report in any civil or criminal action against a health care provider or
facility.
4. The bill specifies that the confidentiality provisions related to review records
apply regardless of whether the review is conducted by representatives from one one
or more organizations.
5. The bill provides that the confidentially provisions for review records apply
only if the review for which the records were created was conducted for one of the
following purposes: to help improve the quality of health care, to avoid improper
utilization of the services of health care providers or facilities, or to determine
reasonable charges for such services.
6. Instead of requiring that review records and information acquired in
connection with a review be disclosed in statistical form, the bill allows that such
information and review records may be disclosed in statistical form.
Use of health care reports or employee statements
This bill prohibits the use as evidence in a civil or criminal action of any health
care provider reports that are required by the department of regulation and licensing
or by the division within the department of health and family services that conducts
health care provider quality assurance reviews. The bill also prohibits the use as
evidence in a civil or criminal action of any statements of, or records of interviews
with, employees of a health care provider related to the regulation of a health care
provider and obtained by the department of regulation and licensing or by the
division within the department of health and family services that conducts health
care provider quality assurance reviews. The bill makes an exception from these
prohibitions for the use of the records, statements, or interviews in an administrative
proceeding conducted by the department of regulation and licensing or by the
division within the department of health and family services that conducts health
care provider quality assurance reviews.
Crimes
Under current law, a person who causes the death of, or bodily harm to, an
individual by negligent operation or handling of a dangerous weapon, explosives, or
fire is guilty of a crime. A dangerous weapon includes any device or instrumentality,
which in the manner it is used or intended to be used, is calculated or likely to
produce death or great bodily harm. The bill provides that a health care provider is
not guilty of the crimes of causing the death of, or bodily harm to, an individual by
negligent operation or handling of a dangerous weapon, explosives, or fire, if the
health care provider is acting within the scope of his or her practice or employment.
Also under current law, a person who intentionally, recklessly, or negligently
abuses an individual who is age 60 or older, or an individual who has a physical or
mental condition that substantially impairs his or her ability to care for his or her
needs, and who has experienced, is currently experiencing, or is at risk of
experiencing abuse, neglect, self-neglect, or financial exploitation (individual at
risk), is guilty of a crime. This bill eliminates criminal liability for negligent abuse
of an individual at risk.
Finally, under current law, a person who is in charge of or employed by a
residential care facility, an inpatient health care facility, a treatment facility, or a
home health agency, who intentionally, recklessly, or negligently abuses or neglects
a patient or resident is guilty of a crime. This bill eliminates criminal liability for
negligent abuse or neglect of a patient or resident.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB863, s. 1
1Section
1. 146.38 (1) (bm) of the statutes is created to read:
AB863,3,62
146.38
(1) (bm) "Incident report" means a written or oral statement that is
3made to notify a person, organization, or an evaluator who reviews or evaluates the
4services of health care providers or facilities or charges for such services of an
5incident, practice, or other situation that becomes the subject of such a review or
6evaluation.
AB863, s. 2
7Section
2. 146.38 (1m) of the statutes is amended to read:
AB863,4,4
1146.38
(1m) No person who participates in the review or evaluation of the
2services of health care providers or facilities or charges for such services may disclose
3an incident report or any information acquired in connection with such review or
4evaluation except as provided in sub. (3)
or (3m).
AB863, s. 3
5Section
3. 146.38 (2) of the statutes is amended to read:
AB863,4,216
146.38
(2) All
persons, organizations
, or evaluators
reviewing or evaluating,
7whether from one or more entities, who review or evaluate the services of health care
8providers
or facilities in order to help improve the quality of health care, to avoid
9improper utilization of the services of health care providers or facilities, or to
10determine the reasonable charges for such services shall keep a record of their
11investigations, inquiries, proceedings and conclusions. No such record may be
12released to any person under s. 804.10 (4) or otherwise except as provided in sub. (3)
13or (3m). No such record may be used in any civil
or criminal action
for personal
14injuries against the health care provider or facility
or any other health care provider
15or facility; however, information, documents or records presented during the review
16or evaluation may not be construed as immune from discovery under s. 804.10 (4) or
17use in any civil
or criminal action merely because they were so presented. Any person
18who testifies during or participates in the review or evaluation may testify in any
19civil action as to matters within his or her knowledge, but may not testify as to
20information obtained through his or her participation in the review or evaluation,
21nor as to any conclusion of such review or evaluation.
AB863, s. 4
22Section
4. 146.38 (2m) of the statutes is created to read:
AB863,4,2423
146.38
(2m) An incident report may not be used in any civil or criminal action
24against a health care provider or facility.
AB863, s. 5
25Section
5. 146.38 (3) (d) of the statutes is repealed.
AB863, s. 6
1Section
6. 146.38 (3) (e) of the statutes is repealed.
AB863, s. 7
2Section
7. 146.38 (3m) of the statutes is created to read:
AB863,5,83
146.38
(3m) Information acquired in connection with the review and
4evaluation of health care services may be disclosed, and records of such review and
5evaluation may be released, in statistical form with the consent of the person
6directing the review or evaluation. Information disclosed or records released under
7this subsection shall not reveal the identity of any patient unless the patient has
8granted permission to disclose his or her identity.
AB863, s. 8
9Section
8. 904.16 of the statutes is created to read:
AB863,5,10
10904.16 Health care reports. (1) In this section:
AB863,5,1111
(a) "Health care provider" has the meaning given in s. 146.81 (1).
AB863,5,1412
(b) "Regulatory agency" means the department of regulation and licensing or
13the division within the department of health and family services that conducts
14quality assurance activities related to health care providers.
AB863,5,16
15(2) Except as provided in sub. (3), the following may not be used as evidence
16in a civil or criminal action brought against a health care provider.
AB863,5,1817
(a) Reports that a regulatory agency requires a health care provider to give or
18disclose to that regulatory agency.
AB863,5,2119
(b) Statements of, or records of interviews with, employees of a health care
20provider related to the regulation of the health care provider obtained by a regulatory
21agency.
AB863,5,24
22(3) This section does not prohibit the use of the reports, statements, and records
23described in sub. (2) in any administrative proceeding conducted by a regulatory
24agency. This section does not apply to reports protected under s. 146.997.
AB863, s. 9
25Section
9. 940.08 (1) of the statutes is amended to read:
AB863,6,3
1940.08
(1) Whoever Except as provided in sub. (3), whoever causes the death
2of another human being by the negligent operation or handling of a dangerous
3weapon, explosives or fire is guilty of a Class G felony.
AB863, s. 10
4Section
10. 940.08 (3) of the statutes is created to read:
AB863,6,65
940.08
(3) Subsection (1) does not apply to a health care provider acting within
6the scope of his or her practice or employment.
AB863, s. 11
7Section
11. 940.24 (1) of the statutes is amended to read:
AB863,6,108
940.24
(1) Whoever Except as provided in sub. (3), whoever causes bodily harm
9to another by the negligent operation or handling of a dangerous weapon, explosives
10or fire is guilty of a Class I felony.
AB863, s. 12
11Section
12. 940.24 (3) of the statutes is created to read:
AB863,6,1312
940.24
(3) Subsection (1) does not apply to a health care provider acting within
13the scope of his or her practice or employment.
AB863, s. 13
14Section
13. 940.285 (2) (a) 3. of the statutes is repealed.
AB863, s. 14
15Section
14. 940.285 (2) (b) 1g. of the statutes is amended to read:
AB863,6,1816
940.285
(2) (b) 1g. Any person violating par. (a) 1. or 2. under circumstances
17that cause death is guilty of a Class C felony.
Any person violating par. (a) 3. under
18circumstances that cause death is guilty of a Class D felony.
AB863, s. 15
19Section
15. 940.285 (2) (b) 1r. of the statutes is amended to read:
AB863,6,2320
940.285
(2) (b) 1r. Any person violating par. (a) 1. under circumstances that are
21likely to cause great bodily harm is guilty of a Class G felony. Any person violating
22par. (a) 2.
or 3. under circumstances that are likely to cause great bodily harm is
23guilty of a Class I felony.
AB863, s. 16
24Section
16. 940.285 (2) (b) 4. of the statutes is amended to read:
AB863,7,2
1940.285
(2) (b) 4. Any person violating par. (a) 2.
or 3. under circumstances that
2cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
AB863, s. 17
3Section
17. 940.285 (2) (b) 5. of the statutes is amended to read:
AB863,7,54
940.285
(2) (b) 5. Any person violating par. (a) 1.
, or 2.
or 3. under circumstances
5not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.