146.36(4)
(4) A council member shall be immune from civil liability and criminal prosecution for any act or omission done in good faith within the scope of his or her powers and duties under this section.
146.36(5)
(5) This section does not apply after December 30, 2000.
146.36 History
History: 1995 a. 442.
146.37
146.37
Health care services review; civil immunity. 146.37(1g)
(1g) Except as provided in
s. 153.85, no person acting in good faith who participates in the review or evaluation of the services of health care providers or facilities or the charges for such services conducted in connection with any program organized and operated to help improve the quality of health care, to avoid improper utilization of the services of health care providers or facilities or to determine the reasonable charges for such services, or who participates in the obtaining of health care information under
ch. 153, is liable for any civil damages as a result of any act or omission by such person in the course of such review or evaluation. Acts and omissions to which this subsection applies include, but are not limited to, acts or omissions by peer review committees or hospital governing bodies in censuring, reprimanding, limiting or revoking hospital staff privileges or notifying the medical examining board under
s. 50.36 or taking any other disciplinary action against a health care provider or facility and acts or omissions by a medical director, as defined in
s. 146.50 (1) (j), in reviewing the performance of emergency medical technicians or ambulance service providers.
146.37(1m)
(1m) The good faith of any person specified in
subs. (1g) and
(3) shall be presumed in any civil action. Any person who asserts that such a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.
146.37(2)
(2) In determining whether a member of the reviewing or evaluating organization or the medical director has acted in good faith under
sub. (1g), the court shall consider whether the member or medical director has sought to prevent the health care provider or facility and its counsel from examining the documents and records used in the review or evaluation, from presenting witnesses, establishing pertinent facts and circumstances, questioning or refuting testimony and evidence, confronting and cross-examining adverse witnesses or from receiving a copy of the final report or recommendation of the reviewing organization or medical director.
146.37(3)
(3) This section applies to any person acting in good faith who participates in the review or evaluation of the services of a psychiatrist, or facilities or charges for services of a psychiatrist, conducted in connection with any organization, association or program organized or operated to help improve the quality of psychiatric services, avoid improper utilization of psychiatric services or determine reasonable charges for psychiatric services. This immunity includes, but is not limited to, acts such as censuring, reprimanding or taking other disciplinary action against a psychiatrist for unethical or improper conduct.
146.37 Annotation
Anyone who has the good faith belief that they are participating in a valid peer review procedure of a health care provider is entitled to the presumption of good faith under sub. (1g) and is immune from liability unless the presumption is overcome. Limjoco v. Schenck, 169 W (2d) 703, 486 NW (2d) 567 (Ct. App. 1992).
146.37 Annotation
Person reviewing peer can be found to have acted in bad faith even if procedural rights under (2) were not denied, but whether procedural rights were denied is factor which must be considered in determination of "good faith". Qasem v. Kozarek, 716 F (2d) 1172 (1983).
146.38
146.38
Health care services review; confidentiality of information. 146.38(1)(a)
(a) "Evaluator" means a medical director or a registered nurse who coordinates review of an emergency medical services program of a health care provider.
146.38(1m)
(1m) No person who participates in the review or evaluation of the services of health care providers or facilities or charges for such services may disclose any information acquired in connection with such review or evaluation except as provided in
sub. (3).
146.38(2)
(2) All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under
s. 804.10 (4) or otherwise except as provided in
sub. (3). No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under
s. 804.10 (4) or use in any civil action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.
146.38(3)
(3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld unless the patient has granted permission to disclose identity, in the following circumstances:
146.38(3)(a)
(a) To the health care provider or facility whose services are being reviewed or evaluated, upon the request of such provider or facility;
146.38(3)(b)
(b) To any person with the consent of the health care provider or facility whose services are being reviewed or evaluated;
146.38(3)(c)
(c) To the person requesting the review or evaluation, for use solely for the purpose of improving the quality of health care, avoiding the improper utilization of the services of health care providers and facilities, and determining the reasonable charges for such services;
146.38(3)(d)
(d) In a report in statistical form. The report may identify any provider or facility to which the statistics relate;
146.38(3)(dm)
(dm) With regard to an action under
s. 895.70, to a court of record after issuance of a subpoena;
146.38(3)(e)
(e) With regard to any criminal matter, to a court of record, in accordance with
chs. 885 to
895 and after issuance of a subpoena; and
146.38(3)(f)
(f) To the appropriate examining or licensing board or agency, when the organization or evaluator conducting the review or evaluation determines that such action is advisable.
146.38(4)
(4) Any person who discloses information or releases a record in violation of this section, other than through a good faith mistake, is civilly liable therefor to any person harmed by the disclosure or release.
146.38 Annotation
Conclusions of hospital governing body, based on records and conclusions of peer review committees, were not privileged under this section. State ex rel. Good Samaritan v. Moroney, 123 W (2d) 89, 365 NW (2d) 887 (Ct. App. 1984).
146.38 Annotation
Methodology for determining privileged records under (2) outlined. Franzen v. Children's Hospital, 169 W (2d) 366, 485 NW (2d) 603 (Ct. App. 1992).
146.38 Annotation
Methodology for determining privileged communications under sub. (1m) discussed. Mallon v. Campbell, 178 W (2d) 278, 504 NW (2d) 357 (Ct. App. 1993).
146.38 Annotation
Because this section does not provide for the loss of confidentiality due to disclosure to third parties, no waiver exists under this section. Ollman v. Health Care Liability Ins. Co. 178 W (2d) 648, 505 NW (2d) 399 (Ct. App. 1993).
146.40
146.40
Instructional programs for nurse's assistants and home health and hospice aides. 146.40(1)(bm)
(bm) "Home health aide" means an individual employed by or under contract with a home health agency to provide home health aide services under the supervision of a registered nurse. "Home health aide" does not mean an individual who is licensed, permitted, certified or registered under
ch. 441,
448,
449,
450,
455 or
459.
146.40(1)(bp)
(bp) "Hospice aide" means an individual employed by or under contract with a hospice to provide hospice aide services under the supervision of a registered nurse. "Hospice aide" does not mean an individual who is licensed, permitted, certified or registered under
ch. 441,
448,
449,
450,
455 or
459.
146.40(1)(c)
(c) "Licensed practical nurse" means a nurse who is licensed or has a temporary permit under
s. 441.10.
146.40(1)(d)
(d) "Nurse's assistant" means an individual who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the individual, for the direct health care of a patient or resident. "Nurse's assistant" does not mean an individual who is licensed, permitted, certified or registered under
ch. 441,
448,
449,
450,
451,
455 or
459 or an individual whose duties primarily involve skills that are different than those taught in instructional and competency evaluation programs for nurse's assistants certified under
sub. (3) or evaluated by competency evaluation programs for nurse's assistants approved under
sub. (3m).
146.40(1)(f)
(f) "Registered nurse" means a nurse who has a certificate of registration under
s. 441.06 or a temporary permit under
s. 441.08.
146.40(1)(g)
(g) "Student nurse" means an individual who is currently enrolled in a school for professional nurses or a school for licensed practical nurses that meets standards established under
s. 441.01 (4), or who has successfully completed the course work of a basic nursing course of the school but has not successfully completed the examination under
s. 441.05 or
441.10 (2).
146.40(2)
(2) A hospital, nursing home or intermediate care facility for the mentally retarded may not employ or contract for the services of an individual as a nurse's assistant, a home health agency may not employ or contract for the services of an individual as a home health aide and a hospice may not employ or contract for the services of an individual as a hospice aide, regardless of the title under which the individual is employed, unless one of the following is true:
146.40(2)(a)
(a) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, except as provided in
par. (g), and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual has successfully completed instruction in an instructional and competency evaluation program for nurse's assistants, home health aides or hospice aides that is certified by the department under
sub. (3).
146.40(2)(am)
(am) For hospitals, nursing homes, home health agencies, hospices and intermediate care facilities for the mentally retarded, if the individual was employed or under contract as a nurse's assistant, home health aide or hospice aide between October 1, 1985, and October 1, 1990, and if
par. (b) or
(c) does not apply, after the individual successfully completes, by December 31, 1991, a competency evaluation program that is approved by the department under
sub. (3m).
146.40(2)(b)
(b) For hospitals, nursing homes or home health agencies and intermediate care facilities for the mentally retarded, the individual has been employed or under contract as a nurse's assistant or as a home health aide for at least 12 months on or prior to October 1, 1990, and, for hospices, the individual has been employed or under contract as a hospice aide for at least 12 months on or prior to August 15, 1991.
146.40(2)(bm)
(bm) For nursing homes that are certified providers of medical assistance, the individual has been employed or under contract as a nurse's assistant for one or more such nursing homes of the same employer in this state for at least 24 consecutive months before December 19, 1989.
146.40(2)(c)
(c) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual is employed or under contract as a nurse's assistant, home health aide or hospice aide fewer than 120 calendar days by the hospital, nursing home, home health agency, hospice or intermediate care facility for the mentally retarded.
146.40(2)(d)
(d) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual has successfully completed instruction in an instructional and competency evaluation program or has successfully completed a competency evaluation program for nurse's assistants, for home health aides or for hospice aides that is certified in another state that meets criteria for acceptance in this state as specified by the department by rule, or the individual is certified as a nurse's assistant, home health aide or hospice aide in another state that meets criteria for acceptance in this state as specified by the department by rule, except that after December 31, 1991,
par. (a) applies.
146.40(2)(e)
(e) For hospitals, home health agencies or hospices, whether or not certified providers of medical assistance, nursing homes that are not certified providers of medical assistance and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual is a student nurse who has successfully completed a basic nursing course from a school that is on the accredited list of schools specified under
s. 441.01 (4) or who successfully completes a competency evaluation program for nurse's assistants, home health aides or hospice aides that is approved by the department under
sub. (3m).
146.40(2)(em)
(em) For nursing homes that are certified providers of medical assistance, the individual is a student nurse who successfully completes a competency evaluation program for nurse's assistants that is approved by the department under
sub. (3m).
146.40(2)(f)
(f) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the individual has successfully completed, prior to October 1, 1990, an instructional and competency evaluation program that is substantially the same as an instructional and competency evaluation program certified by the department under
sub. (3) and that the department determines generally meets the standards for certification promulgated under
sub. (3).
146.40(2)(g)
(g) For nursing homes that are certified providers of medical assistance, the individual, if he or she has performed no nursing-related service for monetary compensation for 24 consecutive months after having satisfied the requirement under
par. (a), again successfully completes instruction in an instructional and competency evaluation program for nurse's assistants that is certified by the department under
sub. (3) or a competency evaluation program for nurse's assistants that is approved by the department under
sub. (3m).
146.40(3)
(3) The department shall certify instructional and competency evaluation programs for nurse's assistants, for home health aides and for hospice aides that apply for certification and satisfy standards for certification promulgated by rule by the department. The department shall review the curriculum of each certified instructional and competency evaluation program at least once every 36 months following the date of certification to determine whether the program satisfies the standards for certification. The department may, after providing notice, suspend or revoke the certification of an instructional and competency evaluation program or impose a plan of correction on the program if the program does not satisfy the standards for certification or operates under conditions that are other than those contained in the application approved by the department.
146.40(3m)
(3m) The department shall review competency evaluation programs for nurse's assistants, for home health aides and for hospice aides and may approve those competency evaluation programs that satisfy standards for approval that are specified in rules of the department. The department may, after providing notice, suspend or revoke approval of a competency evaluation program or impose a plan of correction if the competency evaluation program fails to satisfy the standards or operates under conditions that are other than those contained in the application approved by the department.
146.40(4)
(4) An instructional and competency evaluation program certified under
sub. (3) or a competency evaluation program approved under
sub. (3m) shall notify the department, on a form provided by the department, within 30 days after an individual has successfully completed the program.
146.40(4g)(a)(a) The department shall establish and maintain a registry that contains all of the following:
146.40(4g)(a)1.
1. A listing of all individuals about whom the department is notified under
sub. (4).
146.40(4g)(a)2.
2. A listing of all individuals about whom the department is notified under
sub. (4r) (a), for whom the department makes findings under
sub. (4r) (b) and to whom any of the following applies:
146.40(4g)(a)2.b.
b. A hearing officer finds reasonable cause to believe that the individual performed an action alleged under
sub. (4r) (a).
146.40(4g)(a)3.
3. Findings of the department under
sub. (4r) (b) or of the hearing officer under
sub. (4r) (d) concerning the neglect, abuse or misappropriation of property by an individual listed under
subd. 2.
146.40(4g)(a)4.
4. A brief statement, if any, of an individual about whom the department is notified under
sub. (4) and who disputes the department's findings under
sub. (4r) (b) or the hearing officer's findings under
sub. (4r) (d).
146.40(4g)(b)
(b) The department shall provide, upon receipt of a specific, written request, information requested that is contained in the registry under
par. (a).
146.40(4m)
(4m) An instructional and competency evaluation program under
sub. (3) for which the department has suspended or revoked certification or imposed a plan of correction or a competency evaluation program under
sub. (3m) for which the department has suspended or revoked approval or imposed a plan of correction may contest the department's action by sending, within 10 days after receipt of notice of the contested action, a written request for hearing under
s. 227.44 to the division of hearings and appeals created under
s. 15.103 (1). The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under
s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by
ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.
146.40(4r)(a)(a) Any individual may report to the department that he or she believes that a nurse's assistant has neglected, abused or misappropriated the property of a nursing home resident or a hospital patient or that a home health aide has neglected, abused or misappropriated the property of a home health agency patient.
146.40(4r)(b)
(b) The department shall review and investigate any report received under
par. (a) and, if the allegation is substantiated, make specific, documented findings concerning the neglect, abuse or misappropriation of property. The department shall in writing by certified mail notify the nurse's assistant or home health aide specified in the report that his or her name and the department's findings about him or her shall be listed in the registry under
sub. (4g) (a) 2. and
3. unless he or she contests the listings in a hearing before the department. The written notification shall describe the investigation conducted by the department, enumerate the findings alleging neglect, abuse or misappropriation of property of a nursing home resident or home health agency patient and explain the consequence to the nurse's assistant or home health aide of waiving a hearing to contest the findings. The nurse's assistant or home health aide named in the report shall have 30 days after receipt of the notification to indicate to the department in writing whether he or she intends to contest the listing or to waive the hearing.
146.40(4r)(c)
(c) If the nurse's assistant or home health aide under
par. (b) notifies the department that he or she waives a hearing to contest the listings in the registry under
par. (b), or fails to notify the department within 30 days after receipt of a notice under
par. (b), the department shall enter the name of the individual under
sub. (4g) (a) 2. and the department's findings about the individual under
sub. (4g) (a) 3.
146.40(4r)(d)
(d) If the nurse's assistant or home health aide under
par. (b) timely notifies the department that he or she contests the listings in the registry under
par. (b), the department shall hold a hearing under the requirements of
ch. 227. If after presentation of evidence a hearing officer finds that there is no reasonable cause to believe that the nurse's assistant or home health aide performed an action alleged under
par. (a), the hearing officer shall dismiss the proceeding. If after presentation of evidence a hearing officer finds that there is reasonable cause to believe that the nurse's assistant or home health aide performed an action alleged under
par. (a), the hearing officer shall so find and shall cause the name of the nurse's assistant or home health aide to be entered under
sub. (4g) (a) 2. and the hearing officer's findings about the nurse's assistant or home health aide to be entered under
sub. (4g) (a) 3.
146.40(4r)(e)
(e) The nurse's assistant or home health aide may provide the department with a brief statement disputing the department's findings under
par. (b) or the hearing officer's findings under
par. (d) and, if so provided, the department shall enter the statement under
sub. (4g) (a) 4.
146.40(5)(a)(a) The department, in consultation with the technical college system board, shall promulgate rules specifying standards for certification in this state of instructional and competency evaluation programs for nurse's assistants, home health aides and hospice aides. The standards shall include specialized training in providing care to individuals with special needs.
146.40(5)(b)
(b) The department shall promulgate rules specifying criteria for acceptance by this state of an instructional and competency evaluation program or a competency evaluation program that is certified in another state, including whether the other state grants nurse's assistant privileges, home health aide privileges or hospice aide privileges to persons who have completed instruction in an instructional and competency evaluation program that is certified under
sub. (3) and whether one of the following is true:
146.40(5)(b)1.
1. If the other state certifies instructional and competency evaluation programs for nurse's assistants, home health aides or hospice aides, the state's requirements are substantially similar, as determined by the department, to certification requirements in this state.
146.40(5)(b)2.
2. If the other state certifies nurse's assistants, home health aides or hospice aides, that state's requirements are such that one of the following applies:
146.40(5)(b)2.a.
a. The instructional and competency evaluation programs required for attendance by persons receiving certificates are substantially similar, as determined by the department, to instructional and competency evaluation programs certified under
sub. (3).
146.40(5)(b)2.b.
b. The competency evaluation programs required for successful completion by persons receiving certificates are substantially similar, as determined by the department, to competency evaluation programs approved under
sub. (3m).
146.40(6)
(6) Any person who violates
sub. (2) shall forfeit not more than $1,000.
