AB870: Bill Text

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 and keep a separate additional copy, but delete other copies of the recording from the recording device and elsewhere. The facility must retain the separate additional copy for at least seven years after the recording was first made.

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 the 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 provisions of the 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.

The 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, the Department of Health Services is required to promulgate rules establishing standards relating to the recording equipment and the recording. DHS may promulgate additional rules as necessary to implement and administer the provisions of the bill. The bill also allows DHS to grant limited extensions for compliance with the requirements of the bill, if a facility provides evidence of a compelling need, financial or otherwise.

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.

AB870,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB870,1 Section 1. 50.373 of the statutes is created to read:

AB870,,6 50.373 Video recording of surgical procedures. (1) Definitions. In this section:

AB870,,7 (a) “Conscious sedation” is a drug-induced depression of consciousness during which a patient responds purposefully to verbal commands, either alone or accompanied by light tactile stimulation.

AB870,,8 (b) “Deep sedation” is a drug-induced depression of consciousness during which a patient cannot be easily aroused but responds purposefully following repeated or painful stimulation.

AB870,,9 (c) “Discharge instructions” means care instructions provided to a patient at or near the time of a patient’s exit or release from a surgical facility after a surgical procedure.

AB870,,10 (d) “General anesthesia” means a temporary status commonly produced by the administration of certain intravenous drugs and inhaled gases that cause a patient to be unconscious and unable to feel pain during a medical procedure.

AB870,,11 (e) “Guardian” means the person named by the court having the duty and authority of guardianship.

AB870,,12 (f) “Health care provider” means a person or entity described under s. 146.81 (1) (a) to (p) and includes any surgical facility.

AB870,,13 (g) “Incapacitated” means unable to receive and evaluate information effectively or to communicate decisions to such an extent that an individual lacks the capacity to manage his or her health care decisions.

AB870,,14 (h) “Legal custodian” means a person, other than a parent or guardian, or an agency to whom legal custody of a child has been transferred by a court, but does not include a person who has only physical custody of the child.

AB870,,15 (i) “Patient health care records” has the meaning given in s. 146.81 (4).

AB870,,16 (j) “Regional anesthesia” means the use of local anesthetics to make a specific part of the body numb to prevent pain and allow for completion of a surgical procedure.

AB870,,17 (k) “Surgical facility” means a hospital, as defined in s. 50.33 (2), an ambulatory surgical center, as defined in 42 CFR 416.2, or any other place where a surgical procedure is performed.

AB870,,18 (L) “Surgical patient” means a patient who is scheduled to undergo a surgical procedure.

AB870,,19 (m) “Surgical practitioner” means a physician, surgeon, or osteopath under s. 990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other individual who holds a valid license or other credential that allows him or her to perform a surgical procedure.

AB870,,20 (n) “Surgical procedure” means a surgical procedure for which a patient is under conscious sedation, deep sedation, regional anesthesia, or general anesthesia. “Surgical procedure” includes a colonoscopy or similarly invasive procedure if performed under conscious sedation, deep sedation, regional anesthesia, or general anesthesia.

AB870,,21 (o) “Surgical time out” means a final verification of details relating to a surgery, including at least confirmation of a surgical patient’s identity, surgical site, and planned procedure.

AB870,,22 (2) Option for recording. (a) 1. A surgical facility shall provide to a surgical patient the option to have the surgical facility or the surgical facility’s designee make a video recording of the patient’s surgical procedure. For purposes of any recording of a surgical procedure made under this subdivision, the surgical facility or its designee shall make a continuous color video recording, including both audio and video and display of the time and date. The surgical facility or its designee may not interrupt the video recording within the surgical suite once started. Separate interactions outside of the surgical suite, including preoperative communications and surgical time outs under subd. 2., if outside of the surgical suite, and discharge instructions under subd. 3., if applicable, may be separately recorded. All areas of the surgical suite, including entrances and exits, must be in view on the recording and audible. The surgical facility or its designee shall begin the recording within the surgical suite of a surgical procedure under this subdivision when preparation of the surgical suite for that surgical patient’s surgical procedure starts and continue the recording through the period of the cleanup after that procedure and until all activity in the surgical suite related to the procedure recorded is complete.

AB870,,23 2. Any procedure recording made under this subsection shall include a recording, conforming to the standards described in subd. 1., of any preoperative communication regarding the surgical procedure between the surgical practitioner and the surgical patient and any surgical time out, regardless of where the preoperative communication or surgical time out takes place.

AB870,,24 3. A surgical facility shall also provide to a surgical patient the option to have his or her discharge instructions, as given by the patient’s surgical practitioner or other health care provider, recorded. If a patient chooses to have his or her discharge instructions recorded, the recording may be audio only or videotaped, including audio, at the option of the surgical facility.

AB870,,25 (b) 1. A surgical facility shall notify a surgical patient of the option to have a recording made under par. (a) and of the procedures, the fees, the conditions, the surgical practitioner’s request option, and the advance request option.

AB870,,26 2. If the surgical patient is a minor child, the surgical facility shall notify the minor child’s parent, guardian, or legal custodian of the option to have a recording made under par. (a) and of the procedures, the fees, the conditions, the surgical practitioner’s request option, and the advance request option.

AB870,,27 3. If a surgical patient is incapacitated, a surgical facility shall notify a person authorized by the patient under s. 146.81 (5), if available, or, if not, a relative of the patient of the option and information under subd. 1. and allow that person to make a decision regarding whether to have a recording made under par. (a).

AB870,,28 (c) A surgical practitioner who is scheduled to participate in a surgical patient’s surgical procedure may request that the procedure be video recorded under the procedures described in this subsection. The surgical facility shall comply with the surgical practitioner’s request if all of the following are true:

AB870,,29 1. The requesting surgical practitioner has informed the surgical patient or, if the patient is a minor, a parent, guardian, or legal custodian, of the surgical practitioner’s request for video recording and the reason the surgical practitioner has requested that recording. If the patient is incapacitated, the requesting surgical practitioner shall inform a person authorized by the patient under s. 146.81 (5), if available, or, if not, a relative of the patient.

AB870,,30 2. The surgical patient or other person informed under subd. 1. does not object to the video recording.

AB870,,31 (d) A patient’s surgical practitioner or other health care provider who will administer a patient’s discharge instructions may request that the patient’s discharge instructions, as given by the surgical practitioner or other health care provider, be recorded under the procedures described in this subsection. The surgical facility shall comply with the surgical practitioner’s or other health care provider’s request if all of the following are true:

AB870,,32 1. The requesting surgical practitioner or other health care provider has informed the patient or, if applicable, a parent, guardian, legal custodian, person authorized by the patient under s. 146.81 (5), or relative of the patient of the surgical practitioner’s or health care provider’s request for recording and the reason the surgical practitioner or other health care provider has requested that recording.

AB870,,33 2. The surgical patient or, if applicable, the parent, guardian, legal custodian, person authorized by the patient under s. 146.81 (5), or relative of the patient does not object to the recording.

AB870,,34 (e) 1. Except as otherwise provided under this subsection, no surgical patient or person on behalf of a surgical patient may disclose, unless the surgical practitioner or other health care provider that is a subject of the recording waives confidentiality, the content of a recording created under this section except to health care providers providing care to the surgical patient, to immediate family members or a person authorized by the patient under s. 146.81 (5), or to an attorney or an attorney’s staff for the purpose of obtaining legal advice. If legal action relating to the surgical procedure is taken, the surgical patient or an attorney for the surgical patient may disclose the recording to additional individuals if necessary for the case, but the recording shall be filed under seal if permitted by the court. In all other respects, recordings under this section shall be treated as patient health care records.

AB870,,35 2. Notwithstanding the restrictions on disclosure under this paragraph, a surgical patient or a person on behalf of a surgical patient may disclose a recording of the surgical patient’s discharge instructions made under this section to one or more persons designated by the surgical patient to assist the surgical patient with postsurgical care, and one person designated by the surgical patient may receive a free copy of the recording of the surgical patient’s discharge instructions as set forth under sub. (10).

AB870,,36 3. Notwithstanding subds. 1. and 2. and sub. (10), a surgical facility or surgical practitioner may, if authorization is granted under sub. (3), use a copy of a recording created under this section for teaching or research purposes outside the network of the surgical facility and if the surgical patient’s personal identifying information is redacted or if the surgical patient or other person authorized to request or consent to a recording under this section on behalf of the patient expressly consents, in writing, to the use and disclosure. Notwithstanding any other provision of this section, a surgical facility or surgical practitioner may, if not for teaching or research purposes outside of the network of the surgical facility, be permitted to use a recording made under this subsection without informed written confirmation under sub. (3) if the disclosure is otherwise permitted under s. 146.82 or 146.83.

AB870,,37 (3) Written confirmation. Before proceeding with a recording under sub. (2), a surgical facility shall obtain from the surgical patient or other person authorized to request or consent to a recording under sub. (2) on behalf of the patient, confirmation, in writing, authorizing the recording of the surgical patient’s surgical procedure. If a surgical facility or surgical practitioner intends to use a recording as described under sub. (2) (e) 3., the surgical facility shall provide written notice of that proposed use to the surgical patient or other person authorized to request or consent to a recording under sub. (2) on behalf of the patient, and obtain written authorization of that use of the recording.

AB870,,38 (4) Equipment and technical assistance. A surgical facility shall have available appropriate recording equipment and technical assistance as determined by the department in rules promulgated under sub. (8) to comply with a request for a recording of a surgical patient’s surgical procedure or discharge instructions.

AB870,,39 (5) Minors. If a surgical patient is a minor child, a parent, guardian, or legal custodian may request that a recording be made of the minor child’s surgical procedure or discharge instructions under sub. (2) (a).

AB870,,40 (6) Exception for emergencies. (a) Notwithstanding sub. (2), a surgical facility is not required to provide the option of a video recording of a surgical procedure or comply with a request for video recording under this section if the surgical practitioner determines in the exercise of his or her professional judgment that either of the following is true:

AB870,,41 1. Immediate surgery is necessary to avert death.

AB870,,42 2. Other circumstances exist such that video recording would cause a delay that would create a serious risk of substantial and irreversible impairment of one or more of the surgical patient’s bodily functions.

AB870,,43 (b) The surgical practitioner or other health care provider at the surgical facility shall inform the surgical patient or, if applicable, other persons as described under sub. (2) (b) of the medical indications supporting the surgical practitioner’s reasonable medical judgment that an emergency condition under par. (a) exists.

AB870,,44 (c) If a surgical practitioner determines under par. (a) that an emergency exists such that the surgical facility is not required to comply with a request for video recording of a surgical procedure, the surgical facility shall provide the surgical patient or, if applicable, other person under sub. (2) (b), with the option to have the patient’s discharge instructions recorded as provided under sub. (2) (a) 3.

AB870,,45 (7) Extensions for facility compliance. The department may in its discretion grant a surgical facility one or more 6-month extensions of the deadline for the facility to comply with the requirements of this section, but may not grant more than a total of 6 extensions. In order to qualify for an extension, a surgical facility shall provide the department with evidence of a compelling need, financial or otherwise, for additional time for compliance.

AB870,,46 (8) Rules. (a) The department shall promulgate rules establishing standards for video recording of surgical procedures, recording of discharge instructions, and the use of recording equipment in surgery and discharge settings to ensure such recordings are professional and of sufficient quality to accurately portray what takes place when discharge instructions are given or during a surgical procedure, including who enters and leaves and a view of the patient without requiring close-up views of the patient or the surgical procedure itself.

AB870,,47 (b) In addition to the rules required under par. (a), the department may promulgate rules, as necessary, to implement and administer this section, including rules that address any of the following:

AB870,,48 1. Establishing criteria and procedures for providing notice and the option for recording under sub. (2).

AB870,,49 2. Implementing the requirements regarding preservation and destruction of recordings under sub. (9).

AB870,,50 3. Establishing standards, procedures, and forms for advance requests for recording under sub. (12).

AB870,,51 4. Implementing the forfeiture procedures under sub. (14).

AB870,,52 (9) Preservation and destruction. (a) After the video recording of a surgical procedure under this section is complete, the surgical facility shall promptly do all of the following:

AB870,,53 1. Preserve the recording as part of the surgical patient’s health care record, which may include a copy in the patient’s health care record and any electronic backup of health care records kept in the normal course of business.

AB870,,54 2. Preserve a separate additional electronic copy of the recording.

AB870,,55 3. Except as provided under subds. 1. and 2., delete copies of the recording from the recording device or any other electronic device, including any memory card or flash drive.

AB870,,56 (b) The surgical facility shall preserve the copy of the recording in the surgical patient’s health care record, including any backup copy, as it would other records in the patient’s health care record as required by law. The surgical facility or its designee shall retain the additional copy required under par. (a) 2. for at least 7 years after the recording was first made.

AB870,,57 (10) Fees. A surgical facility may charge a surcharge of up to $25 for each recording made of a surgical procedure or discharge instructions to offset the costs of creating and providing a recording. The surgical facility shall provide, upon request by the surgical patient, a person authorized by the surgical patient under s. 146.81 (5), or a parent, guardian, or legal custodian of a minor surgical patient, one copy of each recording made under sub. (2) (a) 1. for which a request is made without additional charge. The surgical facility shall provide to the surgical patient, upon request by the surgical patient, one free copy of the discharge instructions for the surgical patient and up to one additional free copy of the discharge instructions for another person designated by the surgical patient. The surgical facility may charge fees as described under s. 146.83 (3f) (b) 3m. for additional copies of the recordings.

AB870,,58 (11) Admissibility of recording. For purposes of admissibility in a civil or criminal action or proceeding, a recording created under this section is a patient health care record under s. 146.81 and shall be treated as a health care record under ss. 908.03 (6m) and 909.02 (11). If certified by an appropriate record custodian, recordings under this section shall be admissible as evidence in any civil or criminal action or proceeding related to any alleged act or omission depicted in the recording.

AB870,,59 (12) Advance requests for recording. (a) Definition. In this subsection, “principal” means an individual who executes an advance request for surgical procedure recording instrument.

AB870,,60 (b) Advance requests for recording. 1. An individual who is of sound mind and has attained age 18 may voluntarily execute an advance request for surgical procedure recording instrument. An individual for whom an adjudication of incompetence and appointment of a guardian of the individual is in effect in this state is presumed not to be of sound mind for purposes of this subsection and for executing an advance request for surgical procedure recording instrument.

AB870,,61 2. The desires of a principal who is not incapacitated supersede the effect of his or her advance request for surgical procedure recording instrument at all times.

AB870,,62 3. The department shall prepare and provide copies of an advance request for surgical procedure recording instrument and accompanying information for distribution in quantities to health care professionals, hospitals and other surgical facilities, county clerks, and local bar associations and individually to private persons. The department shall determine the form of the request form and accompanying instructions. The department shall include on the form an option for requesting the recording of a specific, single surgical procedure, an option for requesting the recording of discharge instructions after a surgical procedure, an option for requesting the recording of all future surgical procedures under this section, and an option for requesting the recording of discharge instructions after all future surgical procedures under this section. The department shall also include on the form a statement to the effect that a principal who exercises the option for recording agrees that, unless the surgical practitioner involved waives confidentiality, a recording created under this section is confidential and the principal or a person on behalf of the principal may disclose it only to health care providers providing care to the principal, to immediate family members or a person authorized by the patient under s. 146.81 (5), or to an attorney or an attorney’s staff for the purpose of obtaining legal advice, and if legal action relating to the surgical procedure is taken, the principal or an attorney on behalf of the principal may disclose the recording to additional individuals if necessary for the case, but it must be filed under seal if permitted by the court. The form shall also include a statement that the principal or a person on behalf of a principal may disclose the principal’s discharge instructions to one or more persons designated by the principal to assist with postsurgical care, and a statement that a surgical facility or surgical practitioner may, if express authorization is granted by the principal in writing, use a copy of a recording for teaching or research purposes outside of the network of the surgical facility if the principal’s personal identifying information is redacted or if the principal or other person authorized on behalf of the principal expressly consents, in writing, to the use and disclosure.

AB870,,63 (c) Advance request for recording; execution. A valid advance request for surgical procedure recording instrument shall be all of the following:

AB870,,64 1. In writing.

AB870,,65 2. Dated and signed by the principal or by an individual who has attained age 18 at the express direction and in the presence of the principal.

AB870,,66 3. Signed in the presence of a witness who is an individual who has attained age 18.

AB870,,67 4. Voluntarily executed.

AB870,,68 (d) Revocation. A principal may revoke his or her advance request for surgical procedure recording instrument at any time by doing any of the following:

AB870,,69 1. Canceling, defacing, obliterating, burning, tearing, or otherwise destroying the advance request for surgical procedure recording instrument or directing another in the presence of the principal to so destroy the advance request for surgical procedure recording instrument.

AB870,,70 2. Executing a statement, in writing, that is signed and dated by the principal, expressing the principal’s intent to revoke the advance request for surgical procedure recording instrument.

AB870,,71 3. Verbally expressing the desire to revoke the advance request for surgical procedure recording instrument in the presence of a witness.

AB870,,72 4. Executing a subsequent advance request for surgical procedure recording instrument that replaces an existing advance request for surgical procedure recording instrument.

AB870,,73 (13) Penalties. (a) Except as provided under sub. (6), a surgical practitioner or other health care provider who knowingly refuses to comply with a surgical patient’s request to have his or her surgical procedure or discharge instructions recorded may be subject to a forfeiture of not more than $25,000 for each violation.

AB870,,74 (b) Except as provided under sub. (6), a surgical facility that fails to provide a notice required under sub. (2) (b) may be subject to a forfeiture of not more than $25,000 for each violation.

AB870,,75 (c) 1. Any person who negligently interferes with or violates a surgical patient’s advance request for surgical procedure recording instrument created under sub. (12) without the consent of the principal shall be subject to a fine of at least $500 but not more than $1,000.

AB870,,76 2. Any person who intentionally interferes with or violates a surgical patient’s advance request for surgical procedure recording instrument created under sub. (12), including intentionally concealing, canceling, defacing, obliterating, damaging, or destroying the instrument without the consent of the principal may be fined not more than $5,000.

AB870,,77 (d) 1. For purposes of this paragraph, “disclosure” means to effect the provision of access to, or the release, transfer, or divulging in any manner of, information outside those persons or entities authorized under in this section.

AB870,,78 2. Except as otherwise authorized under this section, if a surgical practitioner or other health care provider discloses a recording made under this section, the standards and penalties for violations relating to patient health care records described under s. 146.84 shall apply.

AB870,,79 3. A surgical patient, or another person on behalf of a surgical patient, who intentionally discloses a recording made under this section in violation of sub. (2) (e) may be fined not more than $3,000 per violation. If a person affirmatively discloses a recording made under this section on a social media platform, that disclosure shall constitute a single violation, regardless of whether the disclosure is subsequently redisclosed by other social media participants. Each subsequent disclosure on a separate platform shall be considered a separate violation.

AB870,,80 4. Whoever threatens, with intent to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened to do any act against the person’s will, to disseminate or to communicate to anyone, or, except as otherwise authorized under this section, does disseminate or communicate to anyone, information related to a recording under this section is guilty of a Class I felony. For the purpose of this subdivision, “information” has the meaning given in s. 943.31.

AB870,,81 (14) Forfeiture procedure. (a) The department may directly assess forfeitures provided for under sub. (13). If the department determines that a forfeiture should be assessed for a particular violation, the department shall send a notice of assessment to the violator. The notice shall specify the amount of the forfeiture assessed and the violation and the statute or rule alleged to have been violated, and shall inform the violator of the right to a hearing under par. (b).

AB870,,82 (b) A violator may contest an assessment of a forfeiture by sending, within 30 days after receipt of notice under par. (a), a written request for a 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 60 days after receipt of the request for a hearing and shall issue a final decision within 30 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.

AB870,,83 (c) All forfeitures shall be paid to the department within 30 days after receipt of notice of assessment or, if the forfeiture is contested under par. (b), within 30 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order. The department shall remit all forfeitures paid to the secretary of administration for deposit in the injured patients and families compensation fund under s. 655.27.

AB870,,84 (d) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under sub. (13) if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.