LRB-0422/1
SWB:jld&kjf
2017 - 2018 LEGISLATURE
January 19, 2018 - Introduced by Representatives Sinicki, Berceau, Horlacher,
C. Taylor, Tusler and Zepnick. Referred to Committee on Health.
AB863,1,5
1An Act to amend 146.81 (4); and
to create 50.373, 146.83 (3f) (b) 3m. and 655.27
2(1g) of the statutes;
relating to: video recording of surgical procedures,
3providing an exemption from emergency rule procedures, granting
4rule-making authority, requiring the exercise of rule-making authority, and
5providing penalties.
Analysis by the Legislative Reference Bureau
This bill creates a requirement for hospitals, ambulatory surgical centers, or
any other places where surgical procedures are performed — referred to in the bill
as surgical facilities — to offer surgical patients the option to have their surgical
procedures and discharge instructions videotaped. Surgical facilities must provide
notice of the option and all related procedures and conditions set forth in the bill. For
purposes of this bill, a surgical procedure is one for which a patient is given a general
anesthetic. If a patient makes a request to have a surgical procedure or discharge
instructions recorded, this bill requires that the surgical facility, or its designee,
record the surgical procedure or discharge instructions with both audio and color
video. When recording of a surgical procedure is requested, the facility must record
with color video any entryway to or exit from the surgical suite during the time
reserved for the surgery of the requesting patient, including preparation time. If the
surgical patient is incapacitated, the surgical facility is required to provide a person
authorized by the patient with notice of the option for video recording, and that
person may request that a recording be made. Similarly, if the surgical patient is a
minor, the surgical facility must notify a parent, guardian, or legal custodian of the
option for video recording and allow that person to make a request for a recording
on behalf of the minor. The bill also allows a physician or certain other individual
who holds a valid license or other credential that allows him or her to perform
surgical procedures for which a patient is under general anesthesia (surgical
practitioner) and who is scheduled to perform a surgical patient's surgical procedure
to request that a recording be made. A health care provider who provides the patient
with discharge instructions may also request that those instructions, as provided, be
recorded. A surgical facility must comply with these requests so long as certain
conditions are met, including that the surgical patient or person authorized by the
patient does not object. Under the bill, in certain limited emergency circumstances,
surgical facilities are not required to provide the option of recording.
In return for exercising the option to have a surgical procedure recorded, under
the bill, the surgical patient or, if applicable, parent, guardian, legal custodian, or
person authorized by the patient may disclose the recording only to limited
authorized individuals unless confidentiality is waived by the health care provider
or surgical practitioner that is a subject of the video recording. Video recordings of
surgical procedures created under this bill are otherwise treated as patient health
care records and are subject to the same protections as other medical records
including all criminal and civil penalties for improper disclosure or destruction. The
bill specifies that, once a recording is complete, the surgical facility or its designee
must preserve the recording as part of the patient's health care record but delete
copies of the recording from the recording device and elsewhere. Under the bill, a
surgical facility may charge a surcharge of up to $25 for each recording of a surgical
procedure or discharge instructions. Upon request, the surgical facility must provide
to the patient, person authorized by the patient, or parent, guardian, or legal
custodian of the patient one copy of the recording without an additional charge.
Recordings under this bill are admissible as evidence in any civil or criminal action
or proceeding related to any alleged act or omission depicted in the recording.
Under this bill, a surgical patient may complete an advance request for
recording, which permits an individual who is of sound mind and over the age of 18
to request video recording for future surgical procedures. The individual may
complete an advance request for a single specific surgical procedure or set of
discharge instructions, or for all future surgical procedures and discharge
instructions to which this bill would apply. An advance request must be completed
voluntarily, and must be in writing and signed and dated in the presence of a witness
over the age of 18. The advance request may be revoked at any time.
This bill provides that a health care provider who knowingly refuses to comply
with a patient request for recording is subject to a forfeiture of up to $25,000 for each
violation. A surgical facility that fails to provide a required notice of the option for
recording, including information regarding the procedures, fees, conditions, the
surgical practitioner's request option, and the advance request option, is subject to
a forfeiture of up to $25,000 for each violation. Whoever intentionally conceals,
cancels, defaces, obliterates, damages, or destroys an advance request for recording
without consent may be subject to a forfeiture of up to $25,000 for each violation.
Finally, a patient, parent, guardian, legal custodian, or person authorized by a
patient who knowingly violates the confidentiality provision and discloses a video to
an unauthorized individual is subject to a forfeiture of up to $25,000 for each
violation.
Under this bill, the Department of Health Services is required to promulgate
rules establishing standards relating to the recording equipment and the recording.
The department may promulgate additional rules as necessary to implement and
administer the provisions of the bill.
For further information see the state 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:
AB863,1
1Section
1. 50.373 of the statutes is created to read:
AB863,3,3
250.373 Video recording of surgical procedures. (1) Definitions. In this
3section:
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(a) “Discharge instructions” means care instructions provided to a patient at
5or near the time of a patient's exit or release from a surgical facility after a surgical
6procedure.
AB863,3,97
(b) “General anesthesia" means a temporary status commonly produced by the
8administration of certain intravenous drugs and inhaled gases that cause a patient
9to be unconscious and unable to feel pain during a medical procedure.
AB863,3,1110
(c) “Health care provider" means a person or entity described under s. 146.81
11(1) (a) to (p) and includes any surgical facility.
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(d) “Incapacitated" means unable to receive and evaluate information
13effectively or to communicate decisions to such an extent that an individual lacks the
14capacity to manage his or her health care decisions.
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(e) “Patient health care records" has the meaning given in s. 146.81 (4).
AB863,4,3
1(f) “Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory
2surgical center, as defined in
42 CFR 416.2, or any other place where a surgical
3procedure is performed.
AB863,4,54
(g) “Surgical patient" means a patient who is scheduled to undergo a surgical
5procedure.
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(h) “Surgical practitioner" means a physician, surgeon, or osteopath under s.
7990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other
8individual who holds a valid license or other credential that allows him or her to
9perform a surgical procedure.
AB863,4,1110
(i) “Surgical procedure" means a surgical procedure for which a patient is under
11general anesthesia.
AB863,4,18
12(2) Option for recording. (a) A surgical facility shall provide a surgical
13patient the option to have the surgical facility or the surgical facility's designee make
14a color video recording, including both audio and video and display of the time and
15date, of the patient's surgical procedure. A surgical facility shall also provide a
16surgical patient the option to have his or her discharge instructions, as given by the
17patient's doctor or other health care provider, videotaped as described under this
18paragraph.
AB863,4,2219
(b) 1. A surgical facility shall notify a surgical patient or, if the surgical patient
20is incapacitated, a person authorized by the patient under s. 146.81 (5) of the option
21to have a recording made under par. (a) and of the procedures, fees, conditions, the
22surgical practitioner's request option, and the advance request option.
AB863,5,223
2. If the surgical patient is a minor child, the surgical facility shall notify the
24minor child's parent, guardian, or legal custodian of the option to have a recording
1made under par. (a) and of the procedures, fees, conditions, the surgical practitioner's
2request option, and the advance request option.
AB863,5,63
(c) A surgical practitioner who is scheduled to participate in a surgical patient's
4surgical procedure may request that the procedure be video recorded under the
5procedures described in this subsection. The surgical facility shall comply with the
6surgical practitioner's request if all of the following are true:
AB863,5,107
1. The requesting surgical practitioner has informed the patient or, if
8applicable, a parent, guardian, legal custodian, or a person authorized by the patient,
9of the surgical practitioner's request for video recording and the reason the surgical
10practitioner has requested that recording.
AB863,5,1311
2. The surgical patient, or if applicable, the parent, guardian, legal custodian,
12or person authorized by the patient under s. 146.81 (5), does not object to the video
13recording.
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(d) A patient's doctor or other health care provider who will administer a
15patient's discharge instructions may request that the patient's discharge
16instructions, as given by the health care provider, be video recorded under the
17procedures described in this subsection. The surgical facility shall comply with the
18health care provider's request if all of the following are true:
AB863,5,2219
1. The requesting health care provider has informed the patient or, if
20applicable, a parent, guardian, legal custodian, or a person authorized by the patient,
21of the health care provider's request for video recording and the reason the health
22care provider has requested that recording.
AB863,5,2523
2. The surgical patient, or if applicable, the parent, guardian, legal custodian,
24or person authorized by the patient under s. 146.81 (5), does not object to the video
25recording.
AB863,6,11
1(e) A surgical patient, or if applicable, parent, guardian, legal custodian, or
2person authorized by the patient under s. 146.81 (5), may not disclose, unless the
3surgical practitioner or other health care provider that is a subject of the video
4recording waives confidentiality, the content of a video recording created under this
5section except to health care providers providing care to the surgical patient, to
6immediate family members or a person authorized by the patient under s. 146.81 (5),
7or to an attorney or an attorney's staff for the purpose of obtaining legal advice. If
8legal action is taken, the surgical patient may disclose the video recording to
9additional individuals if necessary for the case, but it shall be filed under seal if
10permitted. In all other respects, recordings under this section shall be treated as
11patient health care records.
AB863,6,19
12(3) Entry and exit recording. If a surgical patient requests to have his or her
13surgical procedure recorded under sub. (2) (a), the surgical facility or its designee
14shall also make a color video recording, including display of the time and date, of any
15entryway to or exit from the surgical suite in which the surgical procedure being
16recorded is taking place, during the time from which the surgical suite is being
17prepared for the surgery of the patient being recorded until that surgical patient
18exits the suite. A surgical facility is not required to record audio in making the
19recording under this subsection.
AB863,6,24
20(4) Equipment and technical assistance. A surgical facility shall have
21available appropriate video recording equipment and technical assistance as
22determined by the department in rules promulgated under sub. (8) to comply with
23a surgical patient request for a recording of his or her surgical procedure or discharge
24instructions.
AB863,7,3
1(5) Incapacity. If a surgical patient is incapacitated, a person authorized by
2the patient under s. 146.81 (5) may request that a recording be made under sub. (2)
3(a).
AB863,7,6
4(6) Minors. If a surgical patient is a minor child, a parent, guardian, or legal
5custodian may request that a recording be made of the minor child's surgical
6procedure or discharge instructions under sub. (2) (a).
AB863,7,10
7(7) Exception for emergencies. (a) Notwithstanding sub. (2), a surgical
8facility is not required to provide the option of a video recording under this section
9if the surgical practitioner determines in the exercise of his or her professional
10judgment that either of the following is true:
AB863,7,1111
1. Immediate surgery is necessary to avert death.
AB863,7,1412
2. Other circumstances exist such that video recording would cause a delay that
13would create a serious risk of substantial and irreversible impairment of one or more
14of the surgical patient's bodily functions.
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(b) The health care provider shall inform the surgical patient, or the parent,
16guardian, or legal custodian or person authorized by the patient under s. 146.81 (5),
17if applicable, of the medical indications supporting the surgical practitioner's
18reasonable medical judgment that either of the emergency conditions under par. (a)
19exists.
AB863,7,25
20(8) Rules. (a) The department shall promulgate rules establishing standards
21for video recording of surgical procedures, video recording of discharge instructions,
22and the use of video recording equipment in the surgery and discharge settings to
23ensure such recordings are professional and of sufficient quality to accurately
24portray what takes place during a surgical procedure or when discharge instructions
25are given.
AB863,8,2
1(b) The department may promulgate rules, as necessary, to implement and
2administer this section, including any of the following:
AB863,8,43
1. Establishing criteria and procedures for providing notice and the option for
4video recording under sub. (2).
AB863,8,65
2. Implementing the requirements regarding preservation and destruction of
6recordings under sub. (9).
AB863,8,87
3. Establishing standards, procedures, and forms for advance requests for
8recording under sub. (12).
AB863,8,99
4. Implementing the forfeiture procedures under sub. (14).
AB863,8,12
10(9) Preservation and destruction. After the recording of a surgical procedure
11under this section is complete, the surgical facility or its designee shall promptly do
12all of the following:
AB863,8,1513
(a) Preserve the recording as part of the surgical patient's health care record,
14which may include both a copy in the patient's health care record and any electronic
15backup of health care records kept in the normal course of business.
AB863,8,1816
(b) Except as provided under par. (a), delete copies of the recording from the
17recording device or any other electronic device, including any memory card or flash
18drive.
AB863,9,2
19(10) Fees. A surgical facility may charge a surcharge of up to $25 for each
20recording made of a surgical procedure or discharge instructions to offset the costs
21of creating and providing a video recording. The surgical facility shall provide, upon
22request by the surgical patient, a person authorized by the surgical patient under s.
23146.81 (5), or a parent, guardian, or legal custodian of a minor surgical patient, one
24copy of each recording for which a request is made without additional charge. The
1surgical facility may charge fees as described under s. 146.83 (3f) (b) 3m. for
2additional copies of the recordings.
AB863,9,9
3(11) Admissibility of recording. For purposes of admissibility in a civil or
4criminal action or proceeding, an audiovisual recording created under this section
5is a patient health care record under s. 146.81 and shall be treated as other patient
6health care records under ss. 908.03 (6m) and 909.02 (11). If certified by an
7appropriate record custodian, recordings under this section shall be admissible as
8evidence in any civil or criminal action or proceeding related to any alleged act or
9omission depicted in the recording.
AB863,9,12
10(12) Advance requests for recording. (a)
Definition. In this subsection,
11“principal" means an individual who executes an advance request for surgical
12procedure recording instrument.
AB863,9,1813
(b)
Advance requests for recording. 1. An individual who is of sound mind and
14has attained age 18 may voluntarily execute an advance request for surgical
15procedure recording instrument. An individual for whom an adjudication of
16incompetence and appointment of a guardian of the individual is in effect in this state
17is presumed not to be of sound mind for purposes of this subsection and for executing
18an advance request for surgical procedure recording instrument.
AB863,9,2119
2. The desires of a principal who does not have incapacity supersede the effect
20of his or her advance request for surgical procedure recording instrument at all
21times.
AB863,9,2522
3. The department shall prepare and provide copies of an advance request for
23surgical procedure recording instrument and accompanying information for
24distribution in quantities to health care professionals, hospitals and other surgical
25facilities, county clerks, and local bar associations and individually to private
1persons. The department shall determine the form of the request form and
2accompanying instructions. The department shall include on the form an option for
3requesting the recording of a specific single surgical procedure, an option for
4requesting the recording of discharge instructions after a surgical procedure, an
5option for requesting the recording of all future surgical procedures under this
6section, and an option for requesting the recording of discharge instructions after all
7future surgical procedures under this section. The department shall also include on
8the form a statement to the effect that a principal who exercises the option for video
9recording agrees that, unless the surgical practitioner involved waives
10confidentiality, a video recording created under this section is confidential and the
11principal or, if applicable, a parent, guardian, legal custodian, or person authorized
12by a patient under s. 146.81 (5), may disclose it only to health care providers
13providing care to the principal, to immediate family members or a person authorized
14by the patient under s. 146.81 (5), or to an attorney or an attorney's staff for the
15purpose of obtaining legal advice, and if legal action is taken, the principal may
16disclose the video recording to additional individuals if necessary for the case, but it
17must be filed under seal if permitted.
AB863,10,1918
(c)
Advance request for recording; execution. A valid advance request for
19surgical procedure recording shall be all of the following: