SB653: Bill Text

SB653,33,6 (b) Without limitation, the following affirmative defenses are available to a person who is alleged to have violated this section:

SB653,33,9 1. That the identified specific conduct is protected by the person's right to engage in expressive conduct protected from legal prohibition by the constitutions of the state and the United States.

SB653,33,15 2. When the identified specific conduct concerns the filing of a lawsuit or administrative complaint, that the lawsuit or administrative complaint alleged acts against the party filing the lawsuit or against the party's child that are recognized under state law as constituting domestic violence under s. 813.12 (1) (am), sexual assault including sexual assault under s. 940.225, 948.06, or 948.09, or physical abuse of a child including physical abuse of a child under s. 948.03.

SB653,33,19 3. When the identified specific conduct concerns the publication, distribution, or communication of deprecatory matter, that all individuals specified in the deprecatory matter consented in writing to the publication, distribution, and communication of the deprecatory matter.

SB653,33,21 (6) The state hereby establishes, affirms, fosters, and promotes the following 3 fundamental policies and interests necessary for the public interest:

SB653,34,3 (a) The protection of health care providers in this state from becoming targets, without remedies, of intentional and frightening conduct directed toward them is critical to the state's significant and substantial governmental interest in health and safety. The public health and welfare of health care patients is preserved and promoted when unlawful and egregious acts directed towards health care providers are subject to state provided protections that minimize injuries sustained from such conduct.

SB653,34,9 (b) The state legislature, relying on evidence that health care providers have historically and repeatedly been targeted for violence on account of the care they provide, finds that it serves a compelling governmental interest of this state to establish policies and laws that protect health care providers, their families, and their property from violence designed to damage or interfere with their operations, and from targeted and dangerous activities.

SB653,34,17 (c) The availability and assurance that patients have continuing access to medically accurate and comprehensive health care, including reproductive health care, and to health care providers who are neither impeded in providing those services nor exposed to risk of employment retribution and unfair discrimination in employment is central to the well being of all residents in this state, to the preservation of health care integrity and patient privacy, to the respect for the sanctity of the doctor-patient relationship, and to the freedom from governmental intrusion that is central to the doctor-patient relationship.

SB653,34,19 258.53 Penalties. (1) Except as provided in sub. (3), a person who violates s. 258.50 (2) (a) or (c) is guilty of a Class I felony.

SB653,34,21 (2) Except as provided in sub. (3), a person who violates s. 258.50 (2) (b) is guilty of a Class A misdemeanor.

SB653,34,23 (3) (a) If all of the following apply, a person who violates s. 258.50 (2) is guilty of the violation indicated in par. (b):

SB653,35,2 1. The person knows that his or her action will cause a specific person's death or injury, or will cause a reasonable person under the same circumstances to suffer serious emotional distress or to reasonably fear death or great bodily harm to himself or herself or to his or her family member or member of his or her household.

SB653,35,6 2. The person's action caused a specific person's death or injury, or caused a person to suffer serious emotional distress or to reasonably fear death or great bodily harm to himself or herself or to his or her family member or member of his or her household.

SB653,35,7 (b) 1. For a violation of s. 258.50 (2) (a) or (c), a Class G felony

SB653,35,8 2. For a violation of s. 258.50 (2) (b), a Class H felony.

SB653,35,9 3. For a violation of s. 258.50 (2) (d), a Class E felony.

SB653,35,16 258.55 Remedies for health care violations. (1) Actions by the attorney general. (a) If the attorney general has reasonable cause to believe that any person is violating s. 258.05, 258.10, 258.25 (4), or 258.50, or that a hospital is violating s. 258.25 (2), the attorney general has standing to bring and may commence a civil action against any party in the name of the state in any court with appropriate jurisdiction to vindicate the public interest and protect the rights of citizens of the state.

SB653,35,24 (b) For each violation specified in par. (a), the court may award any appropriate relief, including temporary, preliminary, or permanent injunctive relief and compensatory damages. The court, to vindicate the public interest, may assess against a party other than the state or instrumentality of the state an additional amount not to exceed $20,000 for the first violation and $40,000 for each subsequent violation, except that for a violation of s. 258.50 the court may assess an additional amount not to exceed $100,000 for a first violation and $1,000,000 for each subsequent violation.

SB653,36,3 (2) Private right of action. (a) A patient or physician claiming a violation of the right and obligations specified in s. 258.05 and any associated claims under common law may commence a civil action for relief under par. (b).

SB653,36,8 (b) In any action under par. (a), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief, and compensatory and punitive damages. With respect to compensatory damages, the plaintiff may elect, at any time prior to the rendering of final judgment, to recover an award of statutory damages in the amount of $5,000 per violation in lieu of actual damages.

SB653,36,13 (c) A physician or health care provider claiming a violation of s. 258.05 (5) or (6), a health care provider claiming a violation of s. 258.10, a patient claiming a violation of s. 258.25, or a reproductive health care provider challenging a determination that an assertion submitted under s. 258.25 (3) (a) did not describe a conscientious belief may commence a civil action for relief under par. (d).

SB653,36,19 (d) In any action under par. (c), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief; back pay or reinstatement or other privileges; and compensatory and punitive damages. With respect to compensatory damages, the plaintiff may elect, at any time before the rendering of final judgment, to recover an award of statutory damages in the amount of $20,000 per violation, in lieu of actual damages.

SB653,36,22 (e) A person claiming a violation of the rights specified in s. 258.50 and any associated claims under common law may commence a civil action for relief under par. (f).

SB653,37,2 (f) In any action under par. (e), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief and compensatory and punitive damages. With respect to compensatory damages, the plaintiff may elect, at any time before the rendering of final judgment, to recover an award of statutory damages in the amount of $20,000 per violation, in lieu of actual damages.

SB653,37,4 258.70 Construction. Nothing in this chapter shall be construed to do any of the following:

SB653,37,7 (1) To prohibit any expressive conduct, including peaceful picketing or other peaceful demonstration, protected from legal prohibition by the First Amendment to the Constitution of the United States of America.

SB653,37,11 (2) To create any new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution of the United States of America, regardless of the point of view expressed, or to limit any existing legal remedies for such interference.

SB653,37,14 (3) To provide exclusive criminal penalties or civil remedies with regard to the conduct prohibited by this chapter or to preempt state or local laws that may provide such penalties or remedies.

SB653,37,16 (4) To have any effect on the rights and obligations or to preempt any state or local laws regarding emergency contraception for sexual assault victims.

SB653,15 Section 15. 441.06 (6) of the statutes is repealed.

SB653,16 Section 16. 441.07 (1g) (f) of the statutes is repealed.

SB653,17 Section 17. 448.02 (3) (a) of the statutes is amended to read:

SB653,38,13 448.02 (3) (a) The board shall investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license, certificate or limited permit granted by the board. An allegation that a physician has violated s. 253.10 (3), 448.30 or 450.13 (2) or has failed to mail or present a medical certification required under s. 69.18 (2) within 21 days after the pronouncement of death of the person who is the subject of the required certificate or that a physician has failed at least 6 times within a 6-month period to mail or present a medical certificate required under s. 69.18 (2) within 6 days after the pronouncement of death of the person who is the subject of the required certificate is an allegation of unprofessional conduct. Information contained in reports filed with the board under s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005, shall be investigated by the board. Information contained in a report filed with the board under s. 655.045 (1), as created by 1985 Wisconsin Act 29, which is not a finding of negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the discretion of the board, be used as the basis of an investigation of a person named in the report. The board may require a person holding a license, certificate or limited permit to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.

SB653,18 Section 18 . 448.02 (3) (a) of the statutes, as affected by 2013 Wisconsin Act 240 and 2015 Wisconsin Act .... (this act), is repealed and recreated to read:

SB653,39,9 448.02 (3) (a) The board shall investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license or certificate granted by the board. An allegation that a physician has violated s. 448.30 or 450.13 (2) or has failed to mail or present a medical certification required under s. 69.18 (2) within 21 days after the pronouncement of death of the person who is the subject of the required certificate or that a physician has failed at least 6 times within a 6-month period to mail or present a medical certificate required under s. 69.18 (2) within 6 days after the pronouncement of death of the person who is the subject of the required certificate is an allegation of unprofessional conduct. Information contained in reports filed with the board under s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005, shall be investigated by the board. Information contained in a report filed with the board under s. 655.045 (1), as created by 1985 Wisconsin Act 29, which is not a finding of negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the discretion of the board, be used as the basis of an investigation of a person named in the report. The board may require a person holding a license or certificate to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.

SB653,19 Section 19. 448.03 (5) (a) of the statutes is repealed.

SB653,20 Section 20. 457.26 (2) (gm) of the statutes is repealed.

SB653,21 Section 21. 625.11 (4) of the statutes is amended to read:

SB653,39,22 625.11 (4) Unfair discrimination. One rate is unfairly discriminatory in relation to another in the same class if it clearly fails to reflect equitably the differences in expected losses and expenses. Rates are unfairly discriminatory when an insurer assigns a higher rate for services based only on incomplete actuarial data or uses such incomplete data to limit liability associated with insuring an unknown risk. Rates are not unfairly discriminatory because different premiums result for policyholders with like loss exposures but different expense factors, or like expense factors but different loss exposures, so long as the rates reflect the differences with reasonable accuracy. Rates are not unfairly discriminatory if they are averaged broadly among persons insured under a group, franchise or blanket policy.

SB653,22 Section 22. 625.22 (1) of the statutes is amended to read:

SB653,40,2 625.22 (1) Order in event of violation. If the commissioner finds after a hearing that a rate is not in compliance with s. 625.11 or 655.92, the commissioner shall order that its use be discontinued for any policy issued or renewed after a date specified in the order.

SB653,23 Section 23. 628.34 (3) (b) of the statutes is amended to read:

SB653,40,13 628.34 (3) (b) No insurer may refuse to insure or refuse to continue to insure, or limit the amount, extent or kind of coverage available to an individual, or charge an individual a different rate for the same coverage because of a mental or physical disability except when the refusal, limitation or rate differential is based on either sound actuarial principles supported by reliable data or actual or reasonably anticipated experience, subject to ss. 632.746 to 632.7495. Sound actuarial principles may not include political or social considerations, ethical or religious considerations, or the charging of higher rates for services when only incomplete actuarial data are available, using such data to limit liability associated with insuring an unknown risk.

SB653,24 Section 24. 632.8985 of the statutes is repealed.

SB653,25 Section 25. Subchapter VIII (title) of chapter 655 [precedes 655.90] of the statutes is created to read:

SB653,40,17 Chapter 655

SB653,40,18 Subchapter VIII

SB653,40,20 Health care liability insurance requirements

SB653,26 Section 26. 655.90 of the statutes is created to read:

SB653,40,24 655.90 Insurance policy requirements. No health care liability policy or self-insured health care provider may exclude or deny coverage for reproductive health care services, including all of the following:

SB653,40,25 (1) Contraceptive implant procedures.

SB653,41,1 (2) Intrauterine contraception procedures.

SB653,41,2 (3) Endometrial biopsies.

SB653,41,3 (4) Medically indicated and elective abortions.

SB653,41,4 (5) Miscarriages.

SB653,41,6 (6) Any other procedures utilizing intrauterine instrumentation for which the health care provider, as defined in 146.81(1), is trained.

SB653,41,8 (7) Any treatment regimens or methods attendant to the procedures covered under this section.

SB653,41,10 (8) Any follow-up treatment regimens or counseling services attendant to the procedures covered under this section.

SB653,27 Section 27. 655.92 of the statutes is created to read:

SB653,41,15 655.92 Rates and classification of procedures. (1) (a) An insurer shall consider medically indicated and elective abortions as having equivalent actuarial risk and shall include medically indicated and elective abortions in the same risk classes or subclasses representing similar actuarial risk.

SB653,41,20 (b) An insurer shall classify intrauterine contraception procedures, contraceptive implant procedures, and the exclusive and entire method applicable for both abortion and the procedures used after miscarriage under family or general medicine, including outpatient gynecology, and in a class or subclass with comparable actuarial risks established for comparable methods and procedures.

SB653,41,24 (c) An insurer shall classify the regimen that involves prescribing and using medication only for abortion under family or general medicine, including outpatient gynecology, in a class or subclass with similar actuarial risks that permit prescribing medications with comparable safety and efficacy in the general practice of medicine.

SB653,42,6 (d) An insurer shall classify endometrial or related biopsies, procedures using intrauterine instrumentation, and miscarriage and abortion procedures, not including the procedures in pars. (b) and (c), performed during or before the 14th week of gestation in a class or subclass limited to procedures with comparable actuarial risks, including miscarriage treatment procedures and excluding surgical procedures with higher risk factors.

SB653,42,11 (2) Subject to s. 625.11, one rate within a class or subclass for health care liability insurance and liability insurance normally incidental to health care liability insurance is unfairly discriminatory in relation to another rate within the same class or subclass if it fails to reasonably and equitably reflect comparable differences in expected losses and expenses.

SB653,42,16 (3) (a) Rates for health care liability insurance and liability insurance normally incidental to health care liability insurance are excessive and unfairly discriminatory if they are likely to produce a long-run profit that is unreasonably high in relation to the riskiness of the class of business or if expenses are unreasonably high in relation to the services rendered.

SB653,42,20 (b) Rates for health care liability insurance and liability insurance normally incidental to health care liability insurance shall be based on sound actuarial evidence and standards of care, and may not take into account unfairly discriminatory factors, including:

SB653,42,22 1. Political or social concerns associated with providing insurance covering medically indicated and elective abortion procedures.

SB653,42,23 2. Ethical or religious considerations or opinions about abortion.

SB653,43,3 3. The assignment of higher rates for services when only incomplete actuarial data are available and using such data to limit the liability associated with insuring an unknown risk.

SB653,28 Section 28. 655.94 of the statutes is created to read:

SB653,43,8 655.94 Petition by health care providers. (1) Prior to filing a petition to the commissioner, a health care provider shall exhaust all remedies for appealing coverage or rates contained in the provider's health care liability insurance policy or liability insurance normally incidental to health care liability insurance.

SB653,43,14 (2) A health care provider may petition the commissioner for a review of the final determination of rates under its health care liability policy for a review of classification or rates. The petition shall state the basis for the health care provider's belief that the classification or rates are incorrect, or that the classification or rates violate ss. 625.11, 625.12, or 655.92. The commissioner shall refer a petition as specified in sub. (3).

SB653,43,16 (3) (a) The commissioner shall appoint a committee for the review of classification or rates as follows:

SB653,43,20 1. If the health care provider is a hospital or entity affiliated with a hospital, then consisting of 2 representatives of hospitals, other than the health care provider's hospital, and one other person who is knowledgeable about insurance classifications and rates and not affiliated with the insurer.

SB653,43,24 2. If the health care provider is any entity not specified in subd. 1., then consisting of 2 physicians not directly or indirectly affiliated or associated with the health care provider and one other person who is knowledgeable about insurance classifications and rates and not affiliated with the insurer.

SB653,44,3 (b) The appointed committee shall review the classification and rates and report its decision in writing to the health care provider and the commissioner within 5 days after completing the review.

SB653,44,5 (c) Any party to the review adversely affected by the decision of the committee may file a written request for a hearing under subch. III of ch. 227.

SB653,29 Section 29. 655.96 of the statutes is created to read:

SB653,44,11 655.96 Cancelation by insurer. Notwithstanding ss. 631.36, 631.37, and 655.24, an insurer may not cancel or refuse to renew a policy of primary health care liability insurance and liability insurance normally incidental to health care liability insurance except for nonpayment of premiums or if the health care provider provider's license is revoked by the appropriate licensing board.

SB653,30 Section 30. 939.75 (2) (b) 1. of the statutes is amended to read:

SB653,44,15 939.75 (2) (b) 1. An act committed during an induced abortion. This subdivision does not limit the applicability of ss. 940.04, 940.13, 940.15 and 940.16 to an induced abortion.

SB653,31 Section 31. 940.04 of the statutes is repealed.

SB653,32 Section 32. 940.32 (1) (a) 10. of the statutes is renumbered 940.32 (1) (a) 12. and amended to read:

SB653,44,20 940.32 (1) (a) 12. Causing a person to engage in any of the acts described in subds. 1. to 9. 11.

SB653,33 Section 33. 940.32 (1) (a) 11. of the statutes is created to read:

SB653,44,23 940.32 (1) (a) 11. Impeding access to a health care facility where the victim seeks, obtains, or provides health care.

SB653,34 Section 34. 968.26 (1b) (a) 2. a. of the statutes, as created by 2015 Wisconsin Act 64, is amended to read:

SB653,45,6 968.26 (1b) (a) 2. a. Section 940.04, 940.11, 940.19 (2), (4), (5), or (6), 940.195 (2), (4), (5), or (6), 940.20, 940.201, 940.203, 940.205, 940.207, 940.208, 940.22 (2), 940.225 (3), 940.29, 940.302 (2) (c), 940.32, 941.32, 941.38 (2), 942.09 (2), 943.10, 943.205, 943.32 (1), 946.43, 946.44, 946.47, 946.48, 948.02 (3), 948.03 (2) (b) or (c), (3), or (4), 948.04, 948.055, 948.095, 948.10 (1) (a), 948.11, 948.13 (2) (a), 948.14, 948.20, 948.23 (1), (2), or (3) (c) 2. or 3., or 948.30 (1).

SB653,35 Section 35. 990.001 (17) (b) of the statutes is amended to read: