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.
146.40(4d)(c)
(c) Except as provided in
par. (am), the department shall deny an application for the issuance of an 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 an approval specified in
par. (a) or shall revoke an approval if the department of revenue certifies under
s. 73.0301 that the applicant for or holder of 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 program under
sub. (3) for which the department has suspended or revoked approval 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 approval 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. 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 individual employed by or under contract with the entity if the individual 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, notify the individual specified in the report that the individual's name and the department's findings about the individual shall be listed in the registry under
sub. (4g) (a) 2. and
3. unless the individual 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 individual specified in the report of waiving a hearing to contest the findings. The individual specified in the report shall have 30 calendar 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 an individual 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 calendar 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 individual 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 receives a report under
par. (a) or
(am) and determines that an individual who is the subject of the report holds a credential that is related to the individual's employment at, or contract with, the entity, the department shall refer the report to the department of safety and professional services.
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).
