146.35(5)
(5) Whoever violates
sub. (2) is guilty of a Class H felony.
146.37
146.37
Health care services review; civil immunity. 146.37(1)(a)
(a) "Health care provider" includes an ambulance service provider, as defined in
s. 256.01 (3), and an emergency medical technician, as defined in
s. 256.01 (5), and a first responder, as defined in
s. 256.01 (9).
146.37(1g)
(1g) Except as provided in
s. 153.76, 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
subch. I of 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 or podiatry affiliated credentialing 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 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 Wis. 2d 703,
486 N.W.2d 567 (Ct. App. 1992).
146.37 Annotation
When a 3rd party becomes an integral part of the ongoing medical services review, its actions are eligible for immunity from civil liability under this section. It would defeat the purpose of this section if the participation of an outside entity enlisted by a reviewing committee to perform an assessment of the abilities of a physician to perform effectively while on call is not eligible for immunity simply because the outside entity is not part of a formal "peer review program." Rechsteiner v. Hazelden,
2008 WI 97,
313 Wis. 2d 542,
753 N.W.2d 496,
06-1521.
146.37 Annotation
When a 3rd party's diagnosis of the condition of the doctor subject to review was indistinguishable from the employing hospital's review, evaluation, and analysis of the doctor's ability to perform as an on-call surgeon, the diagnosis was the essence of the peer review process initiated by the hospital. Even if the diagnosis was negligent, it was immune because it was central to the peer review process. However, this case does not mean that the peer review statute will immunize medical negligence in all situations, irrespective of the circumstances. Rechsteiner v. Hazelden,
2008 WI 97,
313 Wis. 2d 542,
753 N.W.2d 496,
06-1521.
146.37 Annotation
A person reviewing a peer can be found to have acted in bad faith even if procedural rights under sub. (2) were not denied, but whether procedural rights were denied is a factor that must be considered in a 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(1)(b)
(b) "Health care provider" means any of the following:
146.38 Note
NOTE: The cross-reference to s. 50.01 (6d) was changed from s. 50.01 (1d) by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of s. 50.01 (1d).
146.38(1)(b)3.
3. A person working under the supervision of or in collaboration with a person specified in
subd. 1.
146.38(1)(b)4.
4. A parent, subsidiary, or affiliate organization of a facility, association, or business entity, as specified in
subd. 2.
146.38(1)(bm)
(bm) "Incident or occurrence report" means a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation.
146.38(1m)
(1m) No person who participates in the review or evaluation of the services of health care providers or charges for such services may disclose an incident or occurrence report or any information acquired in connection with such review or evaluation except as provided in
sub. (3) or
(3m).
146.38(2)
(2) All persons, organizations, or evaluators, whether from one or more entities, who review or evaluate the services of health care providers in order to help improve the quality of health care, to avoid improper utilization of the services of health care providers, or to determine the reasonable charges for such services 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) or
(3m). No such record may be used in any civil or criminal action against the health care provider or any other health care provider; however, except for incident or occurrence reports or records from other persons, organizations, or evaluators reviewing or evaluating health care providers, 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 or criminal action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil or criminal 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(2m)
(2m) An incident or occurrence report may not be used in any civil or criminal action against a health care provider.
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 except as permitted under
s. 146.82, in the following circumstances:
146.38(3)(a)
(a) To the health care provider whose services are being reviewed or evaluated, upon the request of such provider;
146.38(3)(b)
(b) To any person with the consent of the health care provider 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 determining the reasonable charges for such services;
146.38(3)(dm)
(dm) With regard to an action under
s. 895.441, to a court of record after issuance of a subpoena; [and]
146.38 Note
NOTE: A missing word is shown in brackets. Corrective legislation is pending.
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(3m)(a)(a) Information acquired in connection with the review and evaluation of health care services may be disclosed, and records of such review and evaluation may be released, in statistical form with the consent of the person authorizing or with the authority to authorize the review or evaluation. Information disclosed or records released under this subsection shall not reveal the identity of any patient except as permitted under
s. 146.82.
146.38(3m)(b)
(b) Information acquired in connection with the review or evaluation of health care services may be disclosed, and the records of such a review or evaluation released, to any of the following persons, with the consent of the person authorizing or with the authority to authorize the review or evaluation:
146.38(3m)(b)2.
2. The parent, subsidiary, or affiliate organization of a health care provider, as defined in
sub. (1) (b) 2.
146.38(3m)(b)3.
3. The parent, subsidiary, or affiliate organization of the employer of a health care provider, as defined in
sub. (1) (b) 1. and
3.
146.38(3t)
(3t) A record described under
sub. (2) or an incident or occurrence report disclosed either under
sub. (3) or
(3m) or in violation of this section remains confidential and may not be used in any civil or criminal action against the health care provider or any other health care provider.
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(6)
(6) Health care provider specific information acquired by an administrative agency in order to help improve the quality of health care, to avoid the improper utilization of services of health care providers, or to determine the reasonable charges for health care services is exempt from inspection, copying, or receipt under
s. 19.35 (1).
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,
00-0901.
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,
00-0901.
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 party asserting the health care services review privilege under sub. (1m) bears the burden of establishing 2 conditions: 1) the investigation must be part of a program organized and operated to improve the quality of health care at the hospital, and 2) the person conducting the investigation must be acting on behalf of, or as part of a group with relatively constant membership, officers, a purpose, and a set of regulations. The privilege did not apply to an investigation conducted by an individual doctor, and not the hospital's peer review committee, that was initiated by the hospital to report a problem to the supervisor of the residency program in which the defendant resident was enrolled, and not to improve the quality of health care at the hospital. Phelps v. Physicians Insurance Company of Wisconsin, Inc.
2005 WI 85,
282 Wis. 2d 69,
698 N.W.2d 643,
03-0580.
146.40
146.40
Instructional programs for nurse aides; reporting client abuse. 146.40(1)(ad)
(ad) "Client" means a person who receives services from an entity.
146.40(1)(aw)
(aw) "Feeding assistant" means an individual who has completed a state-approved training and testing program, as specified by the department by rule, or training, as described in
sub. (2m), that satisfies the state-approved training requirement, to perform one nursing-related duty, as defined by the department by rule.
146.40(1)(bt)
(bt) "Intermediate care facility for persons with an intellectual disability" has the meaning given for "intermediate care facility for the mentally retarded" under
42 USC 1396d (d).
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 aide" 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 aide" does not mean a feeding assistant, 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 programs for nurse aides approved under
sub. (3) or evaluated by competency evaluation programs for nurse aides 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, intermediate care facility for persons with an intellectual disability, home health agency, or hospice may not employ or contract for the services of an individual as a nurse aide, regardless of the title under which the individual is employed or contracted for, unless one of the following is true:
146.40(2)(a)
(a) The individual has successfully completed instruction in an instructional program for nurse aides that is approved under
sub. (3) and has successfully completed a competency evaluation program that is approved under
sub. (3m).
146.40(2)(am)
(am) The individual has completed relevant education, training, instruction, or other experience in connection with any military service, as defined in
s. 111.32 (12g), if the individual or the hospital, nursing home, intermediate care facility, home health agency, or hospice demonstrates to the satisfaction of the department that the education, training, instruction, or other experience is substantially equivalent to an instructional program that is approved under
sub. (3), and the individual has successfully completed a competency evaluation program that is approved under
sub. (3m).
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 persons with an intellectual disability that are certified providers of medical assistance, the individual is enrolled in an instructional program for nurse aides that is approved under
sub. (3) and 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 persons with an intellectual disability. All of the following applies to an individual specified under this paragraph:
146.40(2)(c)1.
1. He or she may perform only services for which he or she has received training and has been found proficient by an instructor under the instructional program.
146.40(2)(c)2.
2. The hospital, nursing home, home health agency, hospice, or intermediate care facility for persons with an intellectual disability may not include the individual in meeting or complying with a requirement for nursing care staff and functions, including a minimum nursing staff requirement.
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 persons with an intellectual disability that are certified providers of medical assistance, the individual has successfully completed an instructional program and a competency evaluation program for nurse aides that is certified in another state that meets criteria for acceptance in this state as specified by the department by rule.
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 persons with an intellectual disability 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 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 aides that is approved by the department under
sub. (3m).
146.40(2)(g)
(g) For hospitals, nursing homes, home health agencies, or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for persons with an intellectual disability 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 a competency evaluation program for nurse aides that is approved by the department under
sub. (3m).
146.40(2m)
(2m) A nursing home or intermediate care facility for persons with an intellectual disability, whether or not the nursing home or intermediate care facility is a certified provider of medical assistance, may not employ or contract for the services of an individual as a feeding assistant, regardless of the title under which the individual is employed or contracted for, unless the individual has successfully completed a state-approved training and testing program, as specified by the department by rule. Any relevant education, training, instruction, or other experience that an individual has obtained in connection with any military service, as defined in
s. 111.32 (12g), counts toward satisfying the requirement to complete the state-approved training program under this subsection, if the individual or the nursing home or intermediate care facility demonstrates to the satisfaction of the department that the education, training, instruction, or other experience obtained by the individual is substantially equivalent to the state-approved training program.
146.40 Note
NOTE: Sub. (2m) is shown as affected by
2011 Wis. Acts 120 and
126 and as merged by the legislative reference bureau under s. 13.92 (2) (i).
146.40(3)
(3) Except as provided in
sub. (4d), the department shall approve instructional programs for nurse aides that apply for, and satisfy standards for, approval that are promulgated by rule by the department. The department shall review the curriculum of each approved instructional program at least once every 24 months following the date of approval to determine whether the program continues to satisfy the standards for approval. Under this subsection, the department may, after providing notice, suspend or revoke the approval of an instructional program or impose a plan of correction on the program if the program fails to satisfy the standards for approval 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 aides and, except as provided in
sub. (4d), may approve those competency evaluation programs that satisfy standards for approval that are specified in rules promulgated by 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 on the program if the competency evaluation program fails to satisfy the standards for approval or operates under conditions that are other than those contained in the application approved by the department.
146.40(4)
(4) A competency evaluation program approved under
sub. (3m) shall notify the department to include an individual on the registry under
sub. (4g) (a) 1. after the individual has successfully completed the competency examination.
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 an approval under
sub. (3) or
(3m).
146.40(4d)(am)
(am) If an individual specified under
par. (a) does not have a social security number, the individual, as a condition of obtaining 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 children and families. An 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.
