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LRB-0883/2
SWB:amn
2019 - 2020 LEGISLATURE
February 14, 2020 - Introduced by Representatives Sinicki, Emerson, Horlacher,
C. Taylor and Thiesfeldt, cosponsored by Senators L. Taylor and Johnson.
Referred to Committee on Health.
AB913,1,5 1An Act to amend 146.81 (4); and to create 50.373, 146.83 (3f) (b) 3m. and 655.27
2(1g) of the statutes; relating to: video recording of surgical procedures,
3providing an exemption from emergency rule procedures, granting
4rule-making authority, requiring the exercise of rule-making authority, and
5providing a penalty.
Analysis by the Legislative Reference Bureau
This bill creates a requirement for hospitals, ambulatory surgical centers, or
any other places where surgical procedures are performed — referred to in the bill
as surgical facilities — to offer surgical patients the option to have their surgical
procedures and discharge instructions videotaped. Surgical facilities must provide
notice of the option and all related procedures and conditions set forth in the bill. For
purposes of this bill, a surgical procedure is one for which a surgical or other invasive
procedure is performed upon a patient under conscious sedation, deep sedation, or
general anesthesia. If a patient makes a request to have a surgical procedure
recorded, this bill requires that the surgical facility, or its designee, record the
surgical procedure with both audio and color video. When recording of a surgical
procedure is requested, the facility must record with color video and audio all activity
in the surgical suite from the time preparation for the surgery begins until all activity
related to the surgery, including cleanup, is complete. If the surgical patient is
incapacitated, the surgical facility is required to provide another authorized person
with notice of the option for video recording, and that person may request that a

recording be made. Similarly, if the surgical patient is a minor, the surgical facility
must notify a parent, guardian, or legal custodian of the option for video recording
and allow that person to make a request for a recording on behalf of the minor. A
patient may also request that his or her discharge instructions be recorded. The
surgical facility may determine if these instructions will be videotaped or
audiotaped. The bill also allows a physician or certain other individual who holds
a valid license or other credential that allows him or her to perform surgical
procedures and who is scheduled to perform a surgical patient's surgical procedure
to request that a recording be made. A health care provider who provides the patient
with discharge instructions may also request that those instructions, as provided, be
recorded. A surgical facility must comply with these provider requests so long as
certain conditions are met, including that the surgical patient or person authorized
by the patient does not object. Under the bill, in certain limited emergency
circumstances, surgical facilities are not required to provide the option of recording.
The bill also allows the Department of Health Services to grant limited waivers from
the requirements, if the facility provides evidence of a compelling need, financial or
otherwise.
In return for exercising the option to have a surgical procedure recorded, under
the bill, the surgical patient or another person on behalf of the patient may not
disclose the recording except to limited authorized individuals, unless
confidentiality is waived by the health care provider or surgical practitioner that is
a subject of the video recording. Video recordings of surgical procedures created
under this bill are otherwise treated as patient health care records and are subject
to the same protections as other patient health care records, including all criminal
and civil penalties for improper disclosure or destruction. The bill specifies that, once
a recording is complete, the surgical facility or its designee must preserve the
recording as part of the patient's health care record but delete copies of the recording
from the recording device and elsewhere. Under the bill, a surgical facility may
charge a surcharge of up to $25 for each recording of a surgical procedure. Upon
request, the surgical facility must provide to the patient, person authorized by the
patient, or parent, guardian, or legal custodian of the patient one copy of the
recording without an additional charge. Recordings under this bill are admissible
as evidence in any civil or criminal action or proceeding related to any alleged act or
omission depicted in the recording. A surgical patient may also request up to two free
copies of his or her discharge instructions — one for the patient, and one for another
person designated by the patient.
Under this bill, a surgical patient may complete an advance request for
recording, which permits an individual who is of sound mind and over the age of 18
to request video recording for future surgical procedures. The individual may
complete an advance request for a single specific surgical procedure or set of
discharge instructions, or for all future surgical procedures and discharge
instructions to which this bill would apply. An advance request must be completed
voluntarily, and must be in writing and signed and dated in the presence of a witness
over the age of 18. The advance request may be revoked at any time.

This bill provides that a health care provider who knowingly refuses to comply
with a patient request for recording is subject to a forfeiture of up to $25,000 for each
violation. A surgical facility that fails to provide a required notice of the option for
recording, including information regarding the procedures, the fees, the conditions,
the surgical practitioner's request option, and the advance request option, is subject
to a forfeiture of up to $25,000 for each violation. The bill also provides penalties for
interference with an advance request for recording, and for unauthorized disclosure
of a recording.
Under this bill, DHS is required to promulgate rules establishing standards
relating to the recording equipment and the recording. The department may
promulgate additional rules as necessary to implement and administer the
provisions of the bill.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB913,1 1Section 1. 50.373 of the statutes is created to read:
AB913,3,3 250.373 Video recording of surgical procedures. (1) Definitions. In this
3section:
AB913,3,64 (a) “Conscious sedation” is a drug-induced depression of consciousness during
5which patients respond purposefully to verbal commands, either alone or
6accompanied by light tactile stimulation.
AB913,3,97 (b) “Deep sedation” is a drug-induced depression of consciousness during
8which patients cannot be easily aroused but respond purposefully following repeated
9or painful stimulation.
AB913,3,1210 (c) “Discharge instructions” means care instructions provided to a patient at
11or near the time of a patient's exit or release from a surgical facility after a surgical
12procedure.
AB913,4,3
1(d) “General anesthesia" means a temporary status commonly produced by the
2administration of certain intravenous drugs and inhaled gases that cause a patient
3to be unconscious and unable to feel pain during a medical procedure.
AB913,4,54 (e) “Guardian” means the person named by the court having the duty and
5authority of guardianship.
AB913,4,76 (f) “Health care provider" means a person or entity described under s. 146.81
7(1) (a) to (p) and includes any surgical facility.
AB913,4,108 (g) “Incapacitated" means unable to receive and evaluate information
9effectively or to communicate decisions to such an extent that an individual lacks the
10capacity to manage his or her health care decisions.
AB913,4,1311 (h) “Legal custodian” means a person, other than a parent or guardian, or an
12agency to whom legal custody of the child has been transferred by a court, but does
13not include a person who has only physical custody of the child.
AB913,4,1414 (i) “Patient health care records" has the meaning given in s. 146.81 (4).
AB913,4,1715 (j) “Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory
16surgical center, as defined in 42 CFR 416.2, or any other place where a surgical
17procedure is performed.
AB913,4,1918 (k) “Surgical patient" means a patient who is scheduled to undergo a surgical
19procedure.
AB913,4,2320 (L) “Surgical practitioner" means a physician, surgeon, or osteopath under s.
21990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other
22individual who holds a valid license or other credential that allows him or her to
23perform a surgical procedure.
AB913,5,224 (m) “Surgical procedure” means a surgical procedure for which a patient is
25under conscious sedation, deep sedation, or general anesthesia. “Surgical

1procedure” includes a colonoscopy or similarly invasive procedure if performed under
2conscious sedation, deep sedation, or general anesthesia.
AB913,5,14 3(2) Option for recording. (a) 1. A surgical facility shall provide a surgical
4patient the option to have the surgical facility or the surgical facility's designee make
5a video recording of the patient's surgical procedure. For purposes of any recording
6of a surgical procedure made under this subdivision, the surgical facility or its
7designee shall make a color video recording, including both audio and video and
8display of the time and date. All areas of the surgical suite, including entrances and
9exits, must be in view on the recording and audible. The surgical facility or its
10designee shall begin the recording of a surgical procedure under this subdivision
11when preparation of the surgical suite for that surgical patient's surgical procedure
12starts and continue the recording through the period of the cleanup after that
13procedure and until all activity in the surgical suite related to the procedure recorded
14is complete.
AB913,5,1915 2. A surgical facility shall also provide a surgical patient the option to have his
16or her discharge instructions, as given by the patient's doctor or other health care
17provider, recorded. If a patient chooses to have his or her discharge instructions
18recorded, the recording may be audio only or videotaped, including audio, at the
19option of the surgical facility.
AB913,5,2220 (b) 1. A surgical facility shall notify a surgical patient of the option to have a
21recording made under par. (a) and of the procedures, the fees, the conditions, the
22surgical practitioner's request option, and the advance request option.
AB913,6,223 2. If the surgical patient is a minor child, the surgical facility shall notify the
24minor child's parent, guardian, or legal custodian of the option to have a recording

1made under par. (a) and of the procedures, the fees, the conditions, the surgical
2practitioner's request option, and the advance request option.
AB913,6,63 3. If a surgical patient is incapacitated, a surgical facility shall notify a person
4authorized by the patient under s. 146.81 (5), if available, or, if not, a relative of the
5patient of the option and information under subd. 1. and allow that person to make
6a decision regarding whether to have a recording under par. (a).
AB913,6,107 (c) A surgical practitioner who is scheduled to participate in a surgical patient's
8surgical procedure may request that the procedure be video recorded under the
9procedures described in this subsection. The surgical facility shall comply with the
10surgical practitioner's request if all of the following are true:
AB913,6,1611 1. The requesting surgical practitioner has informed the surgical patient or, if
12the patient is a minor, a parent, guardian, or legal custodian, of the surgical
13practitioner's request for video recording and the reason the surgical practitioner
14has requested that recording. If the patient is incapacitated, the requesting surgical
15practitioner shall inform a person authorized by the patient under s. 146.81 (5), if
16available, or, if not, a relative of the patient.
AB913,6,1817 2. The surgical patient or other person informed under subd. 1. does not object
18to the video recording.
AB913,6,2319 (d) A patient's doctor or other health care provider who will administer a
20patient's discharge instructions may request that the patient's discharge
21instructions, as given by the health care provider, be recorded under the procedures
22described in this subsection. The surgical facility shall comply with the health care
23provider's request if all of the following are true:
AB913,7,224 1. The requesting health care provider has informed the patient or, if
25applicable, a parent, guardian, legal custodian, or person authorized by the patient,

1of the health care provider's request for recording and the reason the health care
2provider has requested that recording.
AB913,7,53 2. The surgical patient or, if applicable, the parent, guardian, legal custodian,
4or person authorized by the patient under s. 146.81 (5) does not object to the
5recording.
AB913,7,166 (e) 1. Except as otherwise provided under this subsection, no surgical patient
7or person on behalf of a surgical patient may disclose, unless the surgical practitioner
8or other health care provider that is a subject of the recording waives confidentiality,
9the content of a recording created under this section except to health care providers
10providing care to the surgical patient, to immediate family members or a person
11authorized by the patient under s. 146.81 (5), or to an attorney or an attorney's staff
12for the purpose of obtaining legal advice. If legal action is taken, the surgical patient
13or an attorney for the surgical patient may disclose the recording to additional
14individuals if necessary for the case, but the recording shall be filed under seal if
15permitted by the court. In all other respects, recordings under this section shall be
16treated as patient health care records.
AB913,7,2217 2. Notwithstanding the restrictions on disclosure under this paragraph, a
18surgical patient or a person on behalf of a surgical patient may disclose his or her
19discharge instructions to one or more persons designated by the surgical patient to
20assist the surgical patient with postsurgical care, and one person designated by the
21surgical patient may receive a free copy of the surgical patient's discharge
22instructions as set forth under sub. (10).
AB913,8,823 3. Notwithstanding subds. 1. and 2. and sub. (10), a surgical facility or surgical
24practitioner may, if authorization is granted under sub. (3), use a copy of a recording
25made under this subsection for teaching or research purposes outside the network

1of the surgical facility and if the surgical patient's personal identifying information
2is redacted or if the surgical patient or other person authorized to request or consent
3to a recording under this subsection on behalf of the patient expressly consents, in
4writing, to the use and disclosure. Notwithstanding any other provision of this
5section, a surgical facility or surgical practitioner may, if not for teaching or research
6purposes outside of the network of the surgical facility, be permitted to use a
7recording made under this subsection without informed written confirmation under
8sub. (3) if the disclosure is otherwise permitted under s. 146.82 or 146.83.
AB913,8,17 9(3) Written confirmation. Before proceeding with a recording under sub. (2),
10a surgical facility shall obtain from the surgical patient or other person authorized
11to request or consent to a recording under sub. (2) on behalf of the patient,
12confirmation, in writing, authorizing the recording of the surgical patient's surgical
13procedure. If a surgical facility or surgical practitioner intends to use a recording as
14described under sub. (2) (e) 3., the surgical facility shall provide written notice of that
15proposed use to the surgical patient or other person authorized to request or consent
16to a recording under sub. (2) on behalf of the patient, and obtain written
17authorization of that use of the recording.
AB913,8,22 18(4) Equipment and technical assistance. A surgical facility shall have
19available appropriate recording equipment and technical assistance as determined
20by the department in rules promulgated under sub. (8) to comply with a surgical
21patient request for a recording of his or her surgical procedure or discharge
22instructions.
AB913,8,25 23(5) Minors. If a surgical patient is a minor child, a parent, guardian, or legal
24custodian may request that a recording be made of the minor child's surgical
25procedure or discharge instructions under sub. (2) (a).
AB913,9,4
1(6) Exception for emergencies. (a) Notwithstanding sub. (2), a surgical
2facility is not required to provide the option of a video recording under this section
3if the surgical practitioner determines in the exercise of his or her professional
4judgment that either of the following is true:
AB913,9,55 1. Immediate surgery is necessary to avert death.
AB913,9,86 2. Other circumstances exist such that video recording would cause a delay that
7would create a serious risk of substantial and irreversible impairment of one or more
8of the surgical patient's bodily functions.
AB913,9,129 (b) The health care provider shall inform the surgical patient or, if applicable,
10other persons as described under sub. (2) (b) of the medical indications supporting
11the surgical practitioner's reasonable medical judgment that either of the emergency
12conditions under par. (a) exists.
AB913,9,18 13(7) Extensions for facility compliance. The department may in its discretion
14grant a surgical facility one or more 6-month extensions of the deadline for the
15facility to comply with the requirements of this section, but may not grant more than
16a total of 6 extensions. In order to qualify for an extension, a surgical facility shall
17provide the department with evidence of a compelling need, financial or otherwise,
18for additional time for compliance.
AB913,9,25 19(8) Rules. (a) The department shall promulgate rules establishing standards
20for video recording of surgical procedures, recording of discharge instructions, and
21the use of recording equipment in the surgery and discharge settings to ensure such
22recordings are professional and of sufficient quality to accurately portray what takes
23place when discharge instructions are given or during a surgical procedure,
24including who enters and leaves and a view of the patient without requiring close-up
25views of the patient or the surgical procedure itself.
AB913,10,3
1(b) In addition to the rules required under par. (a), the department may
2promulgate rules, as necessary, to implement and administer this section, including
3any of the following:
AB913,10,54 1. Establishing criteria and procedures for providing notice and the option for
5video recording under sub. (2).
AB913,10,76 2. Implementing the requirements regarding preservation and destruction of
7recordings under sub. (9).
AB913,10,98 3. Establishing standards, procedures, and forms for advance requests for
9recording under sub. (12).
AB913,10,1010 4. Implementing the forfeiture procedures under sub. (14).
AB913,10,13 11(9) Preservation and destruction. After the recording of a surgical procedure
12under this section is complete, the surgical facility or its designee shall promptly do
13all of the following:
AB913,10,1614 (a) Preserve the recording as part of the surgical patient's health care record,
15which may include both a copy in the patient's health care record and any electronic
16backup of health care records kept in the normal course of business.
AB913,10,1917 (b) Except as provided under par. (a), delete copies of the recording from the
18recording device or any other electronic device, including any memory card or flash
19drive.
AB913,11,5 20(10) Fees. A surgical facility may charge a surcharge of up to $25 for each
21recording made of a surgical procedure or discharge instructions to offset the costs
22of creating and providing a recording. The surgical facility shall provide, upon
23request by the surgical patient, a person authorized by the surgical patient under s.
24146.81 (5), or a parent, guardian, or legal custodian of a minor surgical patient, one
25copy of each recording made under sub. (2) (a) 1. for which a request is made without

1additional charge. The surgical facility shall provide to the surgical patient, upon
2request by the surgical patient, one free copy of the discharge instructions for the
3surgical patient and up to one additional free copy of the discharge instructions for
4another person designated by the surgical patient. The surgical facility may charge
5fees as described under s. 146.83 (3f) (b) 3m. for additional copies of the recordings.
AB913,11,12 6(11) Admissibility of recording. For purposes of admissibility in a civil or
7criminal action or proceeding, an audiovisual recording created under this section
8is a patient health care record under s. 146.81 and shall be treated as other patient
9health care records under ss. 908.03 (6m) and 909.02 (11). If certified by an
10appropriate record custodian, recordings under this section shall be admissible as
11evidence in any civil or criminal action or proceeding related to any alleged act or
12omission depicted in the recording.
AB913,11,15 13(12) Advance requests for recording. (a) Definition. In this subsection,
14“principal" means an individual who executes an advance request for surgical
15procedure recording instrument.
AB913,11,2116 (b) Advance requests for recording. 1. An individual who is of sound mind and
17has attained age 18 may voluntarily execute an advance request for surgical
18procedure recording instrument. An individual for whom an adjudication of
19incompetence and appointment of a guardian of the individual is in effect in this state
20is presumed not to be of sound mind for purposes of this subsection and for executing
21an advance request for surgical procedure recording instrument.
AB913,11,2322 2. The desires of a principal who is not incapacitated supersede the effect of his
23or her advance request for surgical procedure recording instrument at all times.
AB913,13,224 3. The department shall prepare and provide copies of an advance request for
25surgical procedure recording instrument and accompanying information for

1distribution in quantities to health care professionals, hospitals and other surgical
2facilities, county clerks, and local bar associations and individually to private
3persons. The department shall determine the form of the request form and
4accompanying instructions. The department shall include on the form an option for
5requesting the recording of a specific single surgical procedure, an option for
6requesting the recording of discharge instructions after a surgical procedure, an
7option for requesting the recording of all future surgical procedures under this
8section, and an option for requesting the recording of discharge instructions after all
9future surgical procedures under this section. The department shall also include on
10the form a statement to the effect that a principal who exercises the option for
11recording agrees that, unless the surgical practitioner involved waives
12confidentiality, a recording created under this section is confidential and the
13principal or a person on behalf of the principal may disclose it only to health care
14providers providing care to the principal, to immediate family members or a person
15authorized by the patient under s. 146.81 (5), or to an attorney or an attorney's staff
16for the purpose of obtaining legal advice, and if legal action is taken, the principal
17or an attorney on behalf of the principal may disclose the recording to additional
18individuals if necessary for the case, but it must be filed under seal if permitted by
19the court. The form shall also include a statement that the principal or a person on
20behalf of a principal may disclose the principal's discharge instructions to one or
21more persons designated by the principal to assist with postsurgical care, and a
22statement that a surgical facility or surgical practitioner may, if express
23authorization is granted by the principal in writing, use a copy of a recording for
24teaching or research purposes outside of the network of the surgical facility if the
25principal's personal identifying information is redacted or if the principal or other

1person authorized on behalf of the principal expressly consents, in writing, to the use
2and disclosure.
AB913,13,43 (c) Advance request for recording; execution. A valid advance request for
4surgical procedure recording shall be all of the following:
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