AB993: Bill Text

LRB-1965/1

RLR:cs:rs

2005 - 2006 LEGISLATURE

2005 Assembly BILL 993

February 7, 2006 - Introduced by Representatives Underheim, Gielow, Moulton, Krawczyk, Hahn, Wieckert, Hundertmark, Albers, Strachota, Vruwink and Shilling, cosponsored by Senators Kanavas, Roessler, Darling, Cowles and Erpenbach. Referred to Committee on Health.

AB993,1,4 An Act to repeal 146.37; to amend 146.55 (7), 187.33 (3) (a) 5., 187.43 (3) (a) 5., 655.27 (1m) (b) and 655.27 (5) (a) 1. and 2.; and to repeal and recreate 146.38 of the statutes; relating to: confidentiality of health care review records and immunity.

Analysis by the Legislative Reference Bureau

Current law confidentiality and peer review provisions

Under current law a person who participates in a review or evaluation of the services of a health care provider (a review or evaluation) may not disclose any information acquired in connection with the review or evaluation. Further, records that an organization or evaluator keeps of investigations, inquiries, proceedings and conclusions in connection with a review or evaluation are confidential and may not be used in a civil action for personal injuries against the health care provider. (An "evaluator" is defined as a medical director or registered nurse who coordinates review of an emergency medical services program. "Organization" is not defined. Current law specifies that three particular types of providers are "health care providers," but does not otherwise define "health care provider.")

Current law provides several exceptions to the confidentiality provisions for records and information related to reviews or evaluations, which allow release of information or records to the health care provider who is the subject of the review; to others if the subject of the review or evaluation consents to release; and to the person who requested the review, for use for certain purposes, including improving the quality of health care. Other exceptions to confidentiality allow the release of information that is subpoenaed in a criminal action, the release of information to an examining or licensing board, and the release of information in a statistical report. Current law provides that information or records presented during a review or evaluation are not immune from discovery or use in a civil action simply because they were presented for the review or evaluation. Further, a person who participates in a review or evaluation may testify in a civil action as to matters within his or her knowledge, but may not testify regarding information obtained through the review or evaluation or regarding conclusions of the review or evaluation.

The courts have ruled that records of a review or evaluation conducted by an organization are confidential only if: 1) the review or evaluation is part of a program organized and operated to improve the quality of care of a health care provider; and 2) the person or entity conducting the review or evaluation is part of, or acting on behalf of, a group with relatively constant membership, officers, a purpose, and a set of regulations. The courts have found that the following types of information and records are not confidential or protected: information learned by a hospital administrator in investigating care provided to a patient in a particular incident; a physician's application for reappointment to a hospital staff; information as to whether a hospital investigated a physician or whether the physician's medical privileges were ever limited; and a letter written by a doctor on staff at a hospital to the supervisor of the hospital's residency program that concerned an investigation initiated by the hospital of a resident's performance during a particular incident (in this case, the hospital peer review committee was not convened to investigate). Courts have determined that a review or evaluation by a hospital credentials committee or by the Joint Commission on Accreditation of Healthcare Organizations (a private accrediting body) is confidential and protected.

Finally, current law provides that a person who discloses records or information of a review or evaluation in violation of the confidentiality or privilege provisions is civilly liable for the disclosure.

Bill provisions concerning confidentiality and privilege

This bill repeals the confidentiality and privilege provisions related to a review or evaluation of the services of a health care provider and creates a new confidentiality and privilege provision for records and information related to a quality improvement activity. "Quality improvement activity" is defined as any action, such as a review, study, investigation, corrective action, or recommendation, relating to a health care entity and concerning certain topics, including: quality of care; qualifications, competence, and performance of providers; compliance with credentialing, accreditation, or regulatory standards; compliance with legal, ethical, or behavioral standards; utilization of resources; costs; the approval or credentialing of a health care provider or organization; and morbidity or mortality.

Protection afforded. The bill provides several forms of protection for records of quality improvement activities. Under the bill, records of quality improvement activities, and information in those records, are confidential and privileged, are not subject to discovery, subpoena, or other means of legal compulsion requiring release or permitting inspection; and are not admissible in evidence in a civil or criminal action or administrative proceeding.

The protections extend to records or information that is created, collected, reported, aggregated, or organized as part of a quality improvement activity. The protections also extend to a request for records or information made as part of a quality improvement activity and notice to a health care entity that the entity is or will be the subject of a quality improvement activity. Finally, the protections generally are not waived by an unauthorized or authorized disclosure of records or information.

Who is the subject of a quality improvement activity. The bill broadly defines who may be the subject of a quality improvement activity. Potential subjects or, "health care entities," include:

1. Individuals who must obtain licensure or some other form of certification before providing health care services, such as doctors, nurses, pharmacists, emergency medical technicians, first responders, dieticians, and various therapists.

2. People in training to obtain certification to serve as a health care provider, such as residents.

3. Organizations that provide health care, such as hospitals, clinics, nursing homes, home health agencies, and hospices.

4. People or organizations that are certified by the Department of Health and Family services to provide services under the Medical Assistance program, such as personal care workers and providers of transportation by specialized medical vehicle.

5. A parent organization, subsidiary, or affiliate of a health care entity, such as a company that owns multiple hospitals or clinics.

Who conducts a quality improvement activity. The records of a quality improvement activity are protected if the person who conducts the activity has a responsibility by statute, regulation, bylaw, policy, or resolution or as a condition of accreditation to conduct the activity. Also, records of a quality improvement activity conducted by a person whom a health care entity has charged to conduct the quality improvement activity are protected.

Exceptions to confidentiality and privilege. The bill creates several exceptions to the protections afforded to records and information concerning quality improvement activities. The bill specifies that records or information created apart from a quality improvement activity and maintained by a health care entity for the particular purpose of diagnosing, treating, or documenting care provided to an individual patient are not protected. The bill provides that a person who is mandated by federal or state law to report information may disclose quality improvement records and information in the records to the extent necessary to make the report and provides that once reported such records or information are no longer confidential or privileged. Under the bill, a person who, as a result of a quality improvement activity, takes action to limit or deny a health care entity's ability to serve as a health care entity must disclose to the health care entity records and information that are relevant to the action, and such records are admissible in judicial and administrative proceedings. Further, the bill specifies that the fact that a person took action to limit or deny a health care entity's ability to serve as a health care entity is not confidential or privileged information.

The bill allows a person who has a responsibility to conduct a quality improvement activity to release records of the activity. Also, a person who is charged by a health care entity to conduct a quality improvement activity may release records of the activity if the health care entity provides written authorization for release. Further, the bill provides that if records are widely distributed under these two exceptions to persons who are not health care providers, the records are no longer confidential or privileged.

Finally, the bill provides that if a person planning to conduct a quality improvement activity waives confidentiality and privilege for records of the quality improvement activity before initiating the activity, then the records are not confidential or privileged.

The bill does not make a person who discloses records or information of a quality improvement activity in violation of the confidentiality and privilege provisions civilly liable for the disclosure.

Immunity provisions

Under current law, a person acting in good faith is immune from civil liability for acts or omissions taken while participating in a review or evaluation of the services of health care providers or facilities or of charges for services if the review or evaluation is conducted in connection with a program organized and operated to help improve the quality of health care, to avoid improper utilization of services, or to determine reasonable charges.

The bill provides that a person is immune from civil liability for good faith acts or omissions taken while participating in a quality review activity described above.

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

AB993, s. 1 Section 1. 146.37 of the statutes is repealed.

AB993, s. 2 Section 2. 146.38 of the statutes is repealed and recreated to read:

AB993,4,4 146.38 Health care quality improvement activity. (1) Definitions. In this section:

AB993,4,6 (a) "Adverse action" means any action or recommendation to reduce, restrict, suspend, deny, revoke, or fail to renew any of the following:

AB993,4,8 1. A health care entity's clinical privileges or clinical practice authority at a hospital or other health care entity.

AB993,5,2 2. A health care entity's membership on a medical staff that is organized under by-laws or in another health care entity.

AB993,5,4 3. A health care entity's participation in a defined network plan, as defined in s. 609.01 (1b).

AB993,5,5 4. The accreditation, licensure, or certification of a health care entity.

AB993,5,6 (b) "Health care entity" means any of the following:

AB993,5,14 1. A health care provider, as defined in s. 146.81 (1), an ambulatory surgery center as defined in s. 153.01 (1), a home health agency, as defined in s. 50.49 (1) (a), a home health aide, as defined in s. 146.40 (1) (bm), a hospice aide, as defined in s. 146.40 (1) (bp), a nurse's assistant, as defined in s. 146.40 (1) (d), an ambulance service provider, as defined in s. 146.50 (1) (c), an emergency medical technician, as defined in s. 146.50 (1) (e), a first responder, as defined in s. 146.50 (1) (hm), or any other person who is licensed, certified, or registered to provide health care services including mental health services.

AB993,5,17 2. An individual who is enrolled in an education or training program that the individual must complete in order to obtain credentials required of an individual under subd. 1.

AB993,5,19 3. A person who is certified as a provider of medical assistance under s. 49.45 (2) (a) 11.

AB993,5,21 4. A parent organization, subsidiary, or affiliate of a person described under subd. 1. or 3.

AB993,5,25 (d) "Quality improvement activity" means an evaluation, review, study, assessment, investigation, recommendation, monitoring, corrective action, adverse action, or any other action, which may include one-time, continuous, or periodic data collection, relating to any of the following subjects:

AB993,6,2 1. The quality of care provided by a health care entity or the quality of services provided by a health care entity that have an impact on care.

AB993,6,3 2. Morbidity or mortality related to a health care entity.

AB993,6,5 3. The qualification, competence, conduct, or performance of a health care entity.

AB993,6,6 4. The cost or use of health care services and resources of a health care entity.