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
The conclusions of a hospital governing body, based on records and conclusions of peer review committees, were not privileged under this section. Good Samaritan Hospital v. Moroney,
123 Wis. 2d 89,
365 N.W.2d 887 (Ct. App. 1984).
146.38 Annotation
The methodology for determining privileged records under sub. (2) is outlined. Franzen v. Children's Hospital,
169 Wis. 2d 366,
485 N.W.2d 603 (Ct. App. 1992).
146.38 Annotation
The methodology for determining privileged communications under sub. (1m) is discussed. Mallon v. Campbell,
178 Wis. 2d 278,
504 N.W.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 Wis. 2d 648,
505 N.W.2d 399 (Ct. App. 1993).
146.38 Annotation
Statistical data regarding a hospital's rates of infection for postoperative patients qualifies as a report in statistical form under sub. (3) (d) and was subject to discovery. A court need not conduct an in camera inspection to determine if material sought may be released when there is a request for information that on its face is clearly protected by this section. Braverman v. Columbia Hospital, Inc. 2001 WI App 106,
244 Wis. 2d 98,
629 N.W.2d 66.
146.38 Annotation
The department of health and family services is a person subject to restrictions under sub. (1m) regarding the release of information. Braverman v. Columbia Hospital, Inc. 2001 WI App 106,
244 Wis. 2d 98,
629 N.W.2d 66.
146.38 Annotation
Site reviews by associations to which local hospitals voluntarily submit for review in order to improve the quality of health care services constitutes peer review, the discovery of which is barred by this section. Hofflander v. St. Catherine's Hospital, Inc. 2003 WI 77,
262 Wis. 2d 539,
664 N.W.2d 545,
00-2467.
146.38 Annotation
The definition of "health care provider" is more broad in ss. 146.37 and 146.38 than in ch. 655. Unlike in ch. 655, there is no reason not to have the phrase also cover unlicensed resident physicians in training. Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2004 WI App 91, ___ Wis. 2d ___,
681 N.W.2d 571,
03-0580.
146.38 Annotation
Records are protected from disclosure by this section only if: 1) the investigation is part of a program organized and operated to improve the quality of health care at the hospital; and 2) the organization contemplated by the statute is a group with relatively constant membership, officers, a purpose and a set of regulations. Protected records must be records of investigations, inquiries, proceedings, and conclusions of organizations or evaluators reviewing or evaluating the services of health care providers and not information, documents, or records presented during the review or evaluation. Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2004 WI App 91, ___ Wis. 2d ___,
681 N.W.2d 571,
03-0580.
146.40
146.40
Instructional programs for nurse's aides; reporting client abuse. 146.40(1)(ad)
(ad) "Client" means a person who receives services from an entity.
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 or is licensed as a licensed practical/vocational nurse in a party state, as defined in
s. 441.50 (2) (j).
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,
459, or
460 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 or who is licensed as a registered nurse in a party state, as defined in
s. 441.50 (2) (j).
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) Except as provided in
sub. (4d), 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. Under this subsection, 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, except as provided in
sub. (4d), may approve those competency evaluation programs that satisfy standards for approval that are specified in rules of the department. Under this subsection, 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(4d)(a)(a) Except as provided in
par. (am), the department shall require each applicant to provide the department with his or her social security number, if the applicant is an individual, or the applicant's federal employer identification number, if the applicant is not an individual, as a condition of issuing a certification under
sub. (3) or an approval under
sub. (3m).
146.40(4d)(am)
(am) If an individual who applies for a certification or approval under
par. (a) does not have a social security number, the individual, as a condition of obtaining certification or approval, shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of workforce development. A certification or approval issued in reliance upon a false statement submitted under this paragraph is invalid.
146.40(4d)(b)
(b) The department may not disclose any information received under
par. (a) to any person except to the department of revenue for the sole purpose of requesting certifications under
s. 73.0301.
146.40(4d)(c)
(c) Except as provided in
par. (am), the department shall deny an application for the issuance of a certification or approval specified in
par. (a) if the applicant does not provide the information specified in
par. (a).
146.40(4d)(d)
(d) The department shall deny an application for the issuance of a certification or approval specified in
par. (a) or shall revoke a certification or approval if the department of revenue certifies under
s. 73.0301 that the applicant for or holder of a certification or approval is liable for delinquent taxes.
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) or
(am), 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) or
(am).
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 misappropriation of property or the neglect or abuse of a client 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. This subsection does not apply to a revocation of certification under
sub. (4d) (d).
146.40(4r)(a)(a) Any individual may report to the department that he or she believes that any person employed by or under contract with an entity has neglected or abused a client or misappropriated the client's property.
146.40(4r)(am)1.1. Except as provided in
subd. 2., an entity shall report to the department any allegation of misappropriation of the property of a client or of neglect or abuse of a client by any person employed by or under contract with the entity if the person is under the control of the entity.
146.40(4r)(am)2.
2. An entity shall report to the department of regulation and licensing any allegation of misappropriation of the property of a client or of neglect or abuse of a client by any person employed by or under contract with the entity if that person holds a credential that is related to the person's employment at, or contract with, the entity if the person is under the control of the entity.
146.40(4r)(am)3.
3. An entity that intentionally fails to report an allegation of misappropriation of the property of a client or of neglect or abuse of a client may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.
146.40(4r)(b)
(b) Except as provided in
pars. (em) and
(er), the department shall review and investigate any report received under
par. (a) or
(am) and, if the allegation is substantiated, make specific, documented findings concerning the misappropriation of property or the neglect or abuse. The department shall in writing by certified mail notify the person specified in the report that the person's name and the department's findings about the person shall be listed in the registry under
sub. (4g) (a) 2. and
3. unless the person contests the listings in a hearing before the division of hearings and appeals created under
s. 15.103 (1). The written notification shall describe the investigation conducted by the department, enumerate the findings alleging misappropriation of property or neglect or abuse of a client and explain the consequence to the person specified in the report of waiving a hearing to contest the findings. The person specified 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 person specified in the report received under
par. (a) or
(am) timely notifies the division of hearings and appeals created under
s. 15.103 (1) that he or she contests the listings in the registry under
par. (b), the division of hearings and appeals 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 person specified in the report received under
par. (a) or
(am) performed an action alleged under
par. (a) or
(am), 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 person specified in the report received under
par. (a) or
(am) performed an action alleged under
par. (a) or
(am), the hearing officer shall so find and shall cause the name of the person specified in the report received under
par. (a) or
(am) to be entered under
sub. (4g) (a) 2. and the hearing officer's findings about the person specified in the report received under
par. (a) or
(am) 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(4r)(em)
(em) If the department of health and family services receives a report under
par. (a) or
(am) and determines that a person who is the subject of the report holds a credential that is related to the person's employment at, or contract with, the entity, the department of health and family services shall refer the report to the department of regulation and licensing.
146.40(4r)(er)
(er) The department may contract with private field investigators to conduct investigations of reports received by the department under
par. (a) or
(am).
