JR1 AB1: Bill Text

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.

3. The bill provides that a person who participates in a review may not disclose any incident or occurrence 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 or occurrence report in any civil or criminal action against a health care provider.

4. The bill specifies that the confidentiality provisions related to review records apply regardless of whether the review is conducted by representatives from 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 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. The bill also allows information acquired in connection with a review to be disclosed to a health care provider's employer or parent, subsidiary or affiliated organization or to the parent, subsidiary, or affiliated organization of a health care provider's employer.

7. The bill requires that any record or incident or occurrence report that is disclosed to another, properly or improperly, remains confidential and may not be used in a civil or criminal action against any health care provider.

8. The bill includes as health care providers, for purposes of the confidentiality provisions, all of the following: individual health care providers; facilities, organizations, and business entities that are health care providers; persons working under the supervision of or in collaboration with an individual health care provider; and parents, subsidiaries, or affiliate organizations of facilities, organizations, and business entities that are health care providers.

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 (DRL) or by the division within the Department of Health Services (DHS) 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 DRL or by the division within DHS 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 DRL or by the division within DHS that conducts health care provider quality assurance reviews.

Reporting of hospital quality indicators

Current law requires the Department of Administration to contract with a certain entity to collect health care information from hospitals and ambulatory surgery centers. This entity analyzes and disseminates that health care information in a language understandable to laypersons. Among other health care information, the entity must report hospital quality indicators, but the report cannot identify the individual hospital with the quality indicators. This bill allows the entity to report quality indicators identifying individual hospitals.

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 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 a resident in one of those facilities or agencies is guilty of a crime. The penalties for the crime depend upon the degree of harm suffered by the patient or resident. Under the bill, a person who negligently abuses or neglects a patient or a resident is not guilty of a crime if the person is a health care provider acting in the scope of his or her practice or employment, and he or she commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.

Expert and lay witness testimony

Under current law, if a witness is not testifying as an expert, the witness's testimony is limited to those opinions that are rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony or of a fact at issue in the case. This bill adds the additional limit that a nonexpert's testimony may not be based on scientific, technical, or other specialized knowledge of the witness.

Current law allows the testimony of an expert witness if that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue in the case. This bill limits the testimony of an expert witness to testimony that is based on sufficient facts or data, that is the product of reliable principles and methods, and that is based on the witness applying those principles and methods to the facts of the case. The bill also prohibits the testimony of an expert witness who is entitled to receive any compensation contingent on the outcome of the case.

Currently, the facts or data in a particular case on which an expert witness bases his or her opinion may be made known to the expert at or before the case hearing, but if those facts or data are reasonably relied upon by experts in the field in forming opinions about the subject, they do not need to be admissible into evidence in the case. This bill adds that facts or data that are otherwise inadmissible may not be disclosed to the jury unless the court determines that their value in assisting the jury to evaluate the expert's testimony outweighs their prejudicial effect.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

AB1, s. 1 Section 1. 146.38 (1) (b) of the statutes is renumbered 146.38 (1) (b) (intro.) and amended to read:

AB1,9,6 146.38 (1) (b) (intro.) "Health care provider" includes an ambulance service provider, as defined in s. 256.01 (3), an emergency medical technician, as defined in s. 256.01 (5), and a first responder, as defined in s. 256.01 (9). means any of the following:

AB1, s. 2 Section 2. 146.38 (1) (b) 1. of the statutes is created to read:

AB1,9,8 146.38 (1) (b) 1. A person specified in s. 146.81 (1) (a) to (hp), (r), or (s).

AB1, s. 3 Section 3. 146.38 (1) (b) 2. of the statutes is created to read:

AB1,10,3 146.38 (1) (b) 2. A facility, association, or business entity, as specified in s. 146.81 (1) (i) to (q).

AB1, s. 4 Section 4. 146.38 (1) (b) 3. of the statutes is created to read:

AB1,10,6 146.38 (1) (b) 3. A person working under the supervision of or in collaboration with a person specified in subd. 1.

AB1, s. 5 Section 5. 146.38 (1) (b) 4. of the statutes is created to read:

AB1,10,9 146.38 (1) (b) 4. A parent, subsidiary, or affiliate organization of a facility, association, or business entity, as specified in subd. 2.

AB1, s. 6 Section 6. 146.38 (1) (bm) of the statutes is created to read:

AB1,10,15 146.38 (1) (bm) "Incident or occurrence report" means a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation.

AB1, s. 7 Section 7. 146.38 (1m) of the statutes is amended to read:

AB1,10,20 146.38 (1m) No person who participates in the review or evaluation of the services of health care providers or facilities or charges for such services may disclose an incident or occurrence report or any information acquired in connection with such review or evaluation except as provided in sub. (3) or (3m).

AB1, s. 8 Section 8. 146.38 (2) of the statutes is amended to read:

AB1,11,14 146.38 (2) All persons, organizations , or evaluators reviewing or evaluating, whether from one or more entities, who review or evaluate the services of health care providers in order to help improve the quality of health care, to avoid improper utilization of the services of health care providers, or to determine the reasonable charges for such services shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10 (4) or otherwise except as provided in sub. (3) or (3m). No such record may be used in any civil or criminal action for personal injuries against the health care provider or facility or any other health care provider; however, except for incident or occurrence reports or records from other persons, organizations, or evaluators reviewing or evaluating health care providers, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10 (4) or use in any civil or criminal action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil or criminal action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.

AB1, s. 9 Section 9. 146.38 (2m) of the statutes is created to read:

AB1,11,17 146.38 (2m) An incident or occurrence report may not be used in any civil or criminal action against a health care provider.

AB1, s. 10 Section 10. 146.38 (3) (intro.) of the statutes is amended to read:

AB1,11,23 146.38 (3) (intro.) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld unless the patient has granted permission to disclose identity except as permitted under s. 146.82, in the following circumstances:

AB1, s. 11 Section 11. 146.38 (3) (a), (b) and (c) of the statutes are amended to read:

AB1,12,2 146.38 (3) (a) To the health care provider or facility whose services are being reviewed or evaluated, upon the request of such provider or facility;

AB1,12,4 (b) To any person with the consent of the health care provider or facility whose services are being reviewed or evaluated;

AB1,12,8 (c) To the person requesting the review or evaluation, for use solely for the purpose of improving the quality of health care, avoiding the improper utilization of the services of health care providers and facilities, and determining the reasonable charges for such services;

AB1, s. 12 Section 12. 146.38 (3) (d) of the statutes is repealed.

AB1, s. 13 Section 13. 146.38 (3) (e) of the statutes is repealed.

AB1, s. 14 Section 14. 146.38 (3m) of the statutes is created to read:

AB1,12,17 146.38 (3m) (a) Information acquired in connection with the review and evaluation of health care services may be disclosed, and records of such review and evaluation may be released, in statistical form with the consent of the person authorizing or with the authority to authorize the review or evaluation. Information disclosed or records released under this subsection shall not reveal the identity of any patient except as permitted under s. 146.82.

AB1,12,21 (b) Information acquired in connection with the review or evaluation of health care services may be disclosed, and the records of such a review or evaluation released, to any of the following persons, with the consent of the person authorizing or with the authority to authorize the review or evaluation:

AB1,12,22 1. The employer of a health care provider, as defined in sub. (1) (b) 1. and 3.

AB1,12,24 2. The parent, subsidiary, or affiliate organization of a health care provider, as defined in sub. (1) (b) 2.

AB1,13,2 3. The parent, subsidiary, or affiliate organization of the employer of a health care provider, as defined in sub. (1) (b) 1. and 3.

AB1, s. 15 Section 15. 146.38 (3t) of the statutes is created to read:

AB1,13,7 146.38 (3t) A record described under sub. (2) or an incident or occurrence report disclosed either under sub. (3) or (3m) or in violation of this section remains confidential and may not be used in any civil or criminal action against the health care provider or any other health care provider.

AB1, s. 16 Section 16. 146.38 (6) of the statutes is created to read:

AB1,13,13 146.38 (6) Health care provider specific information acquired by an administrative agency in order to help improve the quality of health care, to avoid the improper utilization of services of health care providers, or to determine the reasonable charges for health care services is exempt from inspection, copying, or receipt under s. 19.35 (1).

AB1, s. 17 Section 17. 153.05 (3m) of the statutes is created to read:

AB1,13,17 153.05 (3m) The entity under contract under sub. (2m) (a) may report quality indicators identifying individual hospitals based on data the entity collects under this subchapter.

AB1, s. 18 Section 18. 230.85 (3) (b) of the statutes is amended to read:

AB1,14,5 230.85 (3) (b) If, after hearing, the division of equal rights finds that the respondent did not engage in or threaten a retaliatory action it shall order the complaint dismissed. The division of equal rights shall order the employee's appointing authority to insert a copy of the findings and orders into the employee's personnel file and, if the respondent is a natural person, order the respondent's appointing authority to insert such a copy into the respondent's personnel file. If the division of equal rights finds by unanimous vote that the employee filed a frivolous complaint it may order payment of the respondent's reasonable actual attorney fees and actual costs. Payment may be assessed against either the employee or the employee's attorney, or assessed so that the employee and the employee's attorney each pay a portion. To find a complaint frivolous the division of equal rights must find that s. 802.05 (2) or 895.044 has been violated.

AB1, s. 19 Section 19. 802.10 (7) of the statutes is amended to read:

AB1,14,8 802.10 (7) Sanctions. Violations of a scheduling or pretrial order are subject to ss. 802.05, 804.12 and, 805.03, and 895.044.

AB1, s. 20 Section 20. 809.103 (2) (a) of the statutes is amended to read:

AB1,14,10 809.103 (2) (a) Is frivolous, as determined under s. 802.05 (2) or 895.044.

AB1, s. 21 Section 21. 814.04 (intro.) of the statutes is amended to read:

AB1,14,16 814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m) (b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9), 281.36 (2) (b) 1., 767.553 (4) (d), 769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3), 895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3), when allowed costs shall be as follows:

AB1, s. 22 Section 22. 814.29 (3) (a) of the statutes is amended to read:

AB1,14,24 814.29 (3) (a) A request for leave to commence or defend an action, proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent of the affiant and counsel for the affiant that if the judgment is in favor of the affiant the court may order the opposing party to first pay the amount of unpaid fees and costs, including attorney fees under ss. 802.05 and, 804.12 (1) (c), and 895.044 and under 42 USC 1988 and to pay the balance to the plaintiff.

AB1, s. 23 Section 23. 893.555 of the statutes is created to read:

AB1,15,2 893.555 Limitation of damages; long-term care providers. (1) In this section:

AB1,15,3 (a) "Long-term care provider" means any of the following:

AB1,15,4 1. An adult family home, as defined in s. 50.01 (1).

AB1,15,5 2. A residential care apartment complex, as defined in s. 50.01 (1d).

AB1,15,6 3. A community-based residential facility, as defined in s. 50.01 (1g).

AB1,15,7 4. A home health agency, as defined in s. 50.01 (1r).

AB1,15,8 5. A nursing home, as defined in s. 50.01 (3).

AB1,15,9 6. A hospice, as defined in s. 50.90 (1).

AB1,15,10 (b) "Noneconomic damages" has the meaning given in s. 893.55 (4) (a).

AB1,15,14 (2) Except as provided in sub. (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a long-term care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

AB1,15,15 (a) Three years from the date of the injury .

AB1,15,19 (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

AB1,15,24 (3) If a long-term care provider conceals from a patient a prior act or omission of the provider that has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (2), whichever is later.

AB1,16,9 (4) The total noneconomic damages recoverable for bodily injury arising from care or treatment performed, or from any omission, by a long-term care provider, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under s. 893.55 (4) (d) for each occurrence on or after the effective date of this subsection .... [LRB inserts date], from all long-term care providers and all employees of long-term care providers acting within the scope of their employment and providing long-term care services who are found negligent.

AB1,16,18 (5) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under s. 893.55 (4) (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under s. 893.55 (4) (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.

AB1,16,25 (6) Notwithstanding the limits on noneconomic damages under this section, damages recoverable against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, for wrongful death are subject to the limit under s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04 (4).

AB1,17,4 (7) Damages recoverable under this section against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, are subject to the provisions of s. 895.045.