LRB-1487/1
RLR:kjf:ph
2009 - 2010 LEGISLATURE
February 17, 2009 - Introduced by Representatives Kaufert, Benedict, M.
Williams, Grigsby, Brooks, Hintz, Gottlieb, Staskunas, Gunderson,
Steinbrink, Kerkman, Ziegelbauer, Knodl, LeMahieu, Lothian, Mursau,
Murtha, Petersen, Petrowski, Ripp, Roth, Spanbauer, Stone, Strachota,
Tauchen, Townsend, Van Roy, Vos
and Kleefisch, cosponsored by Senators
Coggs, Kreitlow, Kapanke, Holperin, Olsen, Lazich, Grothman and Schultz.
Referred to Committee on Public Health.
AB44,1,3 1An Act to renumber and amend 146.89 (1) (r); and to amend 146.89 (4) and
2895.46 (1) (a) of the statutes; relating to: the Volunteer Health Care Provider
3Program.
Analysis by the Legislative Reference Bureau
Currently, under the Volunteer Health Care Provider Program (program), the
state indemnifies certain health care providers who provide health care services for
a nonprofit agency or elementary school free of charge or, in the case of some dental
service, for a discounted fee. In order to serve as a volunteer health care provider
under the program, a person must submit a joint application with a nonprofit agency
or elementary school, and the Department of Administration must approve the
application. If volunteering for a nonprofit agency, the agency must primarily serve
low-income people. The following people may become volunteer health care
providers under the program: physicians, dentists, dental hygienists, registered
nurses, practical nurses, nurse-midwifes, optometrists, physician assistants,
pharmacists, dieticians, nurse practitioners, and pharmacy technicians. If a claim
is brought against a volunteer health care provider for acts or omissions committed
in the course of providing health care services under the program, the state must
provide or pay for legal representation for the volunteer health care provider and
must pay damages and costs awarded against the volunteer health care provider to
the extent that legal representation, damages, and costs are not covered by any
applicable insurance.
This bill requires the state to provide or pay for legal representation and pay
damages and costs awarded against a volunteer health care provider in connection

with a claim arising against the volunteer health care provider for acts or omissions
committed in the course of providing volunteer health care services under the
program, regardless of whether any applicable insurance covers the costs of legal
representation, damages, or costs. The bill also allows chiropractors and physical
therapists to become volunteer health care providers under the program.
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:
AB44, s. 1 1Section 1. 146.89 (1) (r) of the statutes is renumbered 146.89 (1) (r) (intro.) and
2amended to read:
AB44,2,73 146.89 (1) (r) (intro.) "Volunteer health care provider" means an individual who
4is licensed one of the following and who receives no income from the practice of his
5or her health care profession or who receives no income from the practice of that
6health care profession when providing services at the nonprofit agency specified
7under sub. (3) or for the school board or governing body specified under sub. (3r):
AB44,2,12 81. Licensed as a physician under ch. 448, dentist or dental hygienist under ch.
9447, or registered nurse, practical nurse, or nurse-midwife under ch. 441, an
10optometrist under ch. 449, or a physician assistant under ch. 448, or pharmacist
11under ch. 450, who is certified chiropractor under ch. 446, or physical therapist under
12subch. III of ch. 448.
AB44,2,13 132. Certified as a dietitian under subch. V of ch. 448, or who is a,.
AB44,2,14 143. A nurse practitioner, as defined in s. 255.06 (1) (d), or.
AB44,3,2 154. An individual who performs functions described for pharmacy technicians
16in rules promulgated by the pharmacy examining board, and who receives no income
17from the practice of that health care profession or who receives no income from the

1practice of that health care profession when providing services at the nonprofit
2agency or school specified under sub. (3)
.
AB44, s. 2 3Section 2. 146.89 (4) of the statutes is amended to read:
AB44,3,154 146.89 (4) Volunteer health care providers who provide services under this
5section are, for the provision of these services, state agents of the department of
6health services for purposes of ss. 165.25 (6), 893.82 (3) and 895.46. This state agency
7status applies regardless of whether the volunteer health care provider has coverage
8under a policy of health care liability insurance that would extend to services
9provided by the volunteer health care provider under this section; and the
10limitations under s. 895.46 (1) (a) on the payment by the state of damages and costs
11in excess of any insurance coverage applicable to the agent and on the duty of a
12governmental unit to provide or pay for legal representation do not apply. Any policy
13of health care liability insurance providing coverage for services of a health care
14provider may exclude coverage for services provided by the health care provider
15under this section.
AB44, s. 3 16Section 3. 895.46 (1) (a) of the statutes is amended to read:
AB44,4,2117 895.46 (1) (a) If the defendant in any action or special proceeding is a public
18officer or employee and is proceeded against in an official capacity or is proceeded
19against as an individual because of acts committed while carrying out duties as an
20officer or employee and the jury or the court finds that the defendant was acting
21within the scope of employment, the judgment as to damages and costs entered
22against the officer or employee, except as provided in s. 146.89 (4), in excess of any
23insurance applicable to the officer or employee shall be paid by the state or political
24subdivision of which the defendant is an officer or employee. Agents of any
25department of the state shall be covered by this section while acting within the scope

1of their agency. Regardless of the results of the litigation the governmental unit, if
2it does not provide legal counsel to the defendant officer or employee, shall pay
3reasonable attorney fees and costs of defending the action, unless it is found by the
4court or jury that the defendant officer or employee did not act within the scope of
5employment. The Except as provided in s. 146.89 (4), the duty of a governmental unit
6to provide or pay for the provision of legal representation does not apply to the extent
7that applicable insurance provides that representation. If the employing state
8agency or the attorney general denies that the state officer, employee or agent was
9doing any act growing out of or committed in the course of the discharge of his or her
10duties, the attorney general may appear on behalf of the state to contest that issue
11without waiving the state's sovereign immunity to suit. Failure by the officer or
12employee to give notice to his or her department head of an action or special
13proceeding commenced against the defendant officer or employee as soon as
14reasonably possible is a bar to recovery by the officer or employee from the state or
15political subdivision of reasonable attorney fees and costs of defending the action.
16The attorney fees and expenses shall not be recoverable if the state or political
17subdivision offers the officer or employee legal counsel and the offer is refused by the
18defendant officer or employee. If the officer, employee or agent of the state refuses
19to cooperate in the defense of the litigation, the officer, employee or agent is not
20eligible for any indemnification or for the provision of legal counsel by the
21governmental unit under this section.
AB44, s. 4 22Section 4. Initial applicability.
AB44,4,2423 (1) Health care liability insurance. This act first applies to health care
24liability insurance policies issued or renewed on the effective date of this subsection.
AB44,4,2525 (End)
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