AB870: Bill Text

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.

AB870,2 Section 2. 146.81 (4) of the statutes is amended to read:

AB870,,86 146.81 (4) “Patient health care records” means all records related to the health of a patient prepared by or under the supervision of a health care provider; all recordings under s. 50.373 related to a surgical patient; and all records made by an ambulance service provider, as defined in s. 256.01 (3), an emergency medical services practitioner, as defined in s. 256.01 (5), or an emergency medical responder, as defined in s. 256.01 (4p), in administering emergency care procedures to and handling and transporting sick, disabled, or injured individuals. “Patient health care records” includes billing statements and invoices for treatment or services provided by a health care provider and includes health summary forms prepared under s. 302.388 (2). “Patient health care records” does not include those records subject to s. 51.30, reports collected under s. 69.186, records of tests administered under s. 252.15 (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), records related to sales of pseudoephedrine products, as defined in s. 961.01 (20c), that are maintained by pharmacies under s. 961.235, fetal monitor tracings, as defined under s. 146.817 (1), or a pupil’s physical health records maintained by a school under s. 118.125.

AB870,3 Section 3. 146.83 (3f) (b) 3m. of the statutes is created to read:

AB870,,88 146.83 (3f) (b) 3m. Except as provided in s. 50.373, for a copy of a recording of a surgical procedure or discharge instructions, $25 per copy.

AB870,4 Section 4. 655.27 (1g) of the statutes is created to read:

AB870,,90 655.27 (1g) Deposit of forfeitures. Forfeitures paid under s. 50.373 (13) shall be deposited in the fund under sub. (1).

AB870,5 Section 5. Nonstatutory provisions.

AB870,,92 (1) Emergency rules. Using the procedure under s. 227.24, the department of health services shall promulgate the rules required under s. 50.373 for the period before the effective date of the permanent rules promulgated under s. 50.373 but not to exceed the period authorized under s. 227.24 (1) (c), subject to extension under s. 227.24 (2). Notwithstanding s. 227.24 (1) (a), (2) (b), and (3), the department of health services is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Notwithstanding s. 227.24 (1) (e) 1d., the department of health services is not required to prepare a statement of the scope of the rules promulgated under this subsection. Notwithstanding s. 227.24 (1) (e) 1g., the department of health services is not required to present the rules promulgated under this subsection to the governor for approval.

AB870,6 Section 6. Effective dates. This act takes effect on the first day of the 13th month beginning after publication, except as follows:

AB870,,94 (1) Section 5 (1) of this act takes effect on the day after publication.

AB870,,95 (end)