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:
AB863,10,2020 1. In writing.
AB863,10,2221 2. Dated and signed by the principal or by an individual who has attained age
2218, at the express direction and in the presence of the principal.
AB863,10,2423 3. Signed in the presence of a witness who is an individual who has attained
24the age 18.
AB863,10,2525 4. Voluntarily executed.
AB863,11,2
1(d) Revocation. A principal may revoke his or her advance request for surgical
2procedure recording instrument at any time by doing any of the following:
AB863,11,63 1. Canceling, defacing, obliterating, burning, tearing, or otherwise destroying
4the advance request for surgical procedure recording instrument or directing
5another in the presence of the principal to so destroy the advance request for surgical
6procedure recording instrument.
AB863,11,97 2. Executing a statement, in writing, that is signed and dated by the principal,
8expressing the principal's intent to revoke the advance request for surgical procedure
9recording instrument.
AB863,11,1110 3. Verbally expressing the desire to revoke the advance request for surgical
11procedure recording instrument in the presence of a witness.
AB863,11,1412 4. Executing a subsequent advance request for surgical procedure recording
13instrument that replaces an existing advance request for surgical procedure
14recording instrument.
AB863,11,18 15(13) Penalties. (a) Except as provided under sub. (7), a health care provider
16who knowingly refuses to comply with a surgical patient request to have his or her
17surgical procedure or discharge instructions recorded may be subject to a forfeiture
18of not more than $25,000 for each violation.
AB863,11,2119 (b) Except as provided under sub. (7), a surgical facility that fails to provide a
20notice required under sub. (2) (b) may be subject to a forfeiture of not more than
21$25,000 for each violation.
AB863,11,2522 (c) Whoever intentionally conceals, cancels, defaces, obliterates, damages, or
23destroys an advance request for surgical procedure recording instrument created
24under sub. (12) without the consent of the principal for that instrument may be
25subject to a forfeiture of not more than $25,000 for each violation.
AB863,12,3
1(d) A surgical patient, parent, guardian, legal custodian, or person authorized
2by a patient under s. 146.81 (5) who knowingly violates sub. (2) (e) may be subject
3to a forfeiture of not more than $25,000 for each violation.
AB863,12,9 4(14) Forfeiture procedure. (a) The department may directly assess
5forfeitures provided for under sub. (13). If the department determines that a
6forfeiture should be assessed for a particular violation, the department shall send a
7notice of assessment to the health care provider. The notice shall specify the amount
8of the forfeiture assessed, the violation and the statute or rule alleged to have been
9violated, and shall inform the hospital of the right to a hearing under par. (b).
AB863,12,2110 (b) A health care provider may contest an assessment of a forfeiture by sending,
11within 30 days after receipt of notice under par. (a), a written request for a hearing
12under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1).
13The administrator of the division may designate a hearing examiner to preside over
14the case and recommend a decision to the administrator under s. 227.46. The
15decision of the administrator of the division shall be the final administrative
16decision. The division shall commence the hearing within 60 days after receipt of the
17request for a hearing and shall issue a final decision within 30 days after the close
18of the hearing. Proceedings before the division are governed by ch. 227. In any
19petition for judicial review of a decision by the division, the party, other than the
20petitioner, who was in the proceeding before the division shall be the named
21respondent.
AB863,13,222 (c) All forfeitures shall be paid to the department within 30 days after receipt
23of notice of assessment or, if the forfeiture is contested under par. (b), within 30 days
24after receipt of the final decision after exhaustion of administrative review, unless
25the final decision is appealed and the order is stayed by court order. The department

1shall remit all forfeitures paid to the secretary of administration for deposit in the
2injured patients and families compensation fund under s. 655.27.
AB863,13,63 (d) The attorney general may bring an action in the name of the state to collect
4any forfeiture imposed under sub. (13) if the forfeiture has not been paid following
5the exhaustion of all administrative and judicial reviews. The only issue to be
6contested in any such action shall be whether the forfeiture has been paid.
AB863,2 7Section 2. 146.81 (4) of the statutes, as affected by 2017 Wisconsin Act 12, is
8amended to read:
AB863,13,249 146.81 (4) “Patient health care records" means all records related to the health
10of a patient prepared by or under the supervision of a health care provider; all video
11recordings under s. 50.373 related to the surgical patient;
and all records made by
12an ambulance service provider, as defined in s. 256.01 (3), an emergency medical
13services practitioner, as defined in s. 256.01 (5), or an emergency medical responder,
14as defined in s. 256.01 (4p), in administering emergency care procedures to and
15handling and transporting sick, disabled, or injured individuals. “Patient health
16care records" includes billing statements and invoices for treatment or services
17provided by a health care provider and includes health summary forms prepared
18under s. 302.388 (2). “Patient health care records" does not include those records
19subject to s. 51.30, reports collected under s. 69.186, records of tests administered
20under s. 252.15 (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), records
21related to sales of pseudoephedrine products, as defined in s. 961.01 (20c), that are
22maintained by pharmacies under s. 961.235, fetal monitor tracings, as defined under
23s. 146.817 (1), or a pupil's physical health records maintained by a school under s.
24118.125.
AB863,3 25Section 3. 146.83 (3f) (b) 3m. of the statutes is created to read:
AB863,14,2
1146.83 (3f) (b) 3m. Except as provided in s. 50.373, for a copy of a video
2recording of a surgical procedure or discharge instructions, $25 per copy.
AB863,4 3Section 4. 655.27 (1g) of the statutes is created to read:
AB863,14,54 655.27 (1g) Deposit of forfeitures. Forfeitures paid under s. 50.373 (13) shall
5be deposited in the fund under sub. (1).
AB863,5 6Section 5 . Nonstatutory provisions.
AB863,14,217 (1) Emergency rules. Using the procedure under section 227.24 of the statutes,
8the department of health services shall promulgate the rules required under section
950.373 of the statutes for the period before the effective date of the permanent rules
10promulgated under section 50.373 of the statutes but not to exceed the period
11authorized under section 227.24 (1) (c) of the statutes, subject to extension under
12section 227.24 (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b), and
13(3) of the statutes, the department of health services is not required to provide
14evidence that promulgating a rule under this subsection as an emergency rule is
15necessary for the preservation of the public peace, health, safety, or welfare and is
16not required to provide a finding of emergency for a rule promulgated under this
17subsection. Notwithstanding section 227.24 (1) (e) 1d. of the statutes, the
18department of health services is not required to prepare a statement of the scope of
19the rules promulgated under this subsection. Notwithstanding section 227.24 (1) (e)
201g. of the statutes, the department of health services is not required to present the
21rules promulgated under this subsection to the governor for approval.
AB863,6 22Section 6. Effective dates. This act takes effect on the first day of the 13th
23month beginning after publication, except as follows:
AB863,14,2424 (1) Section 5 (1 ) of this act takes effect on the day after publication.
AB863,14,2525 (End)
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