Chapter 146

146.37 146.37 Health care services review; civil immunity.

146.37(1) (1) In this section:

146.37(1)(a) (a) “Health care provider” includes an ambulance service provider, as defined in s. 256.01 (3), and an emergency medical services practitioner, as defined in s. 256.01 (5), and an emergency medical responder, as defined in s. 256.01 (4p).

146.37(1)(b) (b) “Medical director” has the meaning specified in s. 256.01 (11).

146.37(1g) (1g) Except as provided in s. 153.76, no person acting in good faith who participates in the review or evaluation of the services of health care providers or facilities or the charges for such services conducted in connection with any program organized and operated to help improve the quality of health care, to avoid improper utilization of the services of health care providers or facilities or to determine the reasonable charges for such services, or who participates in the obtaining of health care information under subch. I of ch. 153, is liable for any civil damages as a result of any act or omission by such person in the course of such review or evaluation. Acts and omissions to which this subsection applies include, but are not limited to, acts or omissions by peer review committees or hospital governing bodies in censuring, reprimanding, limiting or revoking hospital staff privileges or notifying the medical examining board or podiatry affiliated credentialing board under s. 50.36 or taking any other disciplinary action against a health care provider or facility and acts or omissions by a medical director in reviewing the performance of emergency medical services practitioners, as defined in s. 256.01 (5), or ambulance service providers.

146.37(1m) (1m) The good faith of any person specified in subs. (1g) and (3) shall be presumed in any civil action. Any person who asserts that such a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.

146.37(2) (2) In determining whether a member of the reviewing or evaluating organization or the medical director has acted in good faith under sub. (1g), the court shall consider whether the member or medical director has sought to prevent the health care provider or facility and its counsel from examining the documents and records used in the review or evaluation, from presenting witnesses, establishing pertinent facts and circumstances, questioning or refuting testimony and evidence, confronting and cross-examining adverse witnesses or from receiving a copy of the final report or recommendation of the reviewing organization or medical director.

146.37(3) (3) This section applies to any person acting in good faith who participates in the review or evaluation of the services of a psychiatrist, or facilities or charges for services of a psychiatrist, conducted in connection with any organization, association or program organized or operated to help improve the quality of psychiatric services, avoid improper utilization of psychiatric services or determine reasonable charges for psychiatric services. This immunity includes, but is not limited to, acts such as censuring, reprimanding or taking other disciplinary action against a psychiatrist for unethical or improper conduct.

146.37 History History: 1975 c. 187; 1979 c. 221; 1981 c. 323; 1983 a. 27; 1985 a. 29 s. 3202 (27); 1985 a. 340; 1987 a. 27, 399; 1989 a. 102; 1997 a. 175; 1999 a. 56; 2007 a. 130; 2009 a. 113, 274; 2011 a. 260 s. 81; 2017 a. 12.

146.37 Annotation Anyone who has the good faith belief that they are participating in a valid peer review procedure of a health care provider is entitled to the presumption of good faith under sub. (1g) and is immune from liability unless the presumption is overcome. Limjoco v. Schenck, 169 Wis. 2d 703, 486 N.W.2d 567 (Ct. App. 1992).

146.37 Annotation When a third party becomes an integral part of the ongoing medical services review, its actions are eligible for immunity from civil liability under this section. It would defeat the purpose of this section if the participation of an outside entity enlisted by a reviewing committee to perform an assessment of the abilities of a physician to perform effectively while on call is not eligible for immunity simply because the outside entity is not part of a formal “peer review program.” Rechsteiner v. Hazelden, 2008 WI 97, 313 Wis. 2d 542, 753 N.W.2d 496, 06-1521.

146.37 Annotation When a third party’s diagnosis of the condition of the doctor subject to review was indistinguishable from the employing hospital’s review, evaluation, and analysis of the doctor’s ability to perform as an on-call surgeon, the diagnosis was the essence of the peer review process initiated by the hospital. Even if the diagnosis was negligent, it was immune because it was central to the peer review process. However, this case does not mean that the peer review statute will immunize medical negligence in all situations, irrespective of the circumstances. Rechsteiner v. Hazelden, 2008 WI 97, 313 Wis. 2d 542, 753 N.W.2d 496, 06-1521.

146.37 Annotation A person reviewing a peer can be found to have acted in bad faith even if procedural rights under sub. (2) were not denied, but whether procedural rights were denied is a factor that must be considered in a determination of “good faith.” Qasem v. Kozarek, 716 F.2d 1172 (1983).

146.38 146.38 Health care services review; confidentiality of information.

146.38(1) (1) In this section:

146.38(1)(a) (a) “Evaluator” means a medical director or a registered nurse who coordinates review of an emergency medical services program of a health care provider.

146.38(1)(b) (b) “Health care provider” means any of the following:

146.38(1)(b)1. 1. A person specified in s. 146.81 (1) (a) to (hp), (r), or (s).

146.38(1)(b)2. 2. A facility, association, or business entity, as specified in s. 146.81 (1) (i) to (q) and including a residential care apartment complex, as defined in s. 50.01 (6d).

146.38(1)(b)3. 3. A person working under the supervision of or in collaboration with a person specified in subd. 1.

146.38(1)(b)4. 4. A parent, subsidiary, or affiliate organization of a facility, association, or business entity, as specified in subd. 2.

146.38(1)(bm) (bm) “Incident or occurrence report” means a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation.

146.38(1)(c) (c) “Medical director” has the meaning specified in s. 256.01 (11).

146.38(1m) (1m) No person who participates in the review or evaluation of the services of health care providers or charges for such services may disclose an incident or occurrence report or any information acquired in connection with such review or evaluation except as provided in sub. (3) or (3m).

146.38(2) (2) All persons, organizations, or evaluators, whether from one or more entities, who review or evaluate the services of health care providers in order to help improve the quality of health care, to avoid improper utilization of the services of health care providers, or to determine the reasonable charges for such services shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10 (4) or otherwise except as provided in sub. (3) or (3m). No such record may be used in any civil or criminal action against the health care provider or any other health care provider; however, except for incident or occurrence reports or records from other persons, organizations, or evaluators reviewing or evaluating health care providers, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10 (4) or use in any civil or criminal action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil or criminal action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.

146.38(2m) (2m) An incident or occurrence report may not be used in any civil or criminal action against a health care provider.

146.38(3) (3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld except as permitted under s. 146.82, in the following circumstances:

146.38(3)(a) (a) To the health care provider whose services are being reviewed or evaluated, upon the request of such provider;

146.38(3)(b) (b) To any person with the consent of the health care provider whose services are being reviewed or evaluated;

146.38(3)(c) (c) To the person requesting the review or evaluation, for use solely for the purpose of improving the quality of health care, avoiding the improper utilization of the services of health care providers, and determining the reasonable charges for such services;

146.38(3)(dm) (dm) With regard to an action under s. 895.441, to a court of record after issuance of a subpoena; and

146.38(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) (3m) 

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)1. 1. The employer of a health care provider, as defined in sub. (1) (b) 1. and 3.

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(5) (5) This section does not apply to s. 256.25.

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 History History: 1975 c. 187; 1979 c. 89; 1983 a. 27; 1989 a. 102; 1991 a. 217; 1999 a. 56; 2005 a. 155, 315; 2007 a. 130; 2011 a. 2, 32; 2013 a. 165 s. 114; 2013 a. 166.

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. State ex rel. Good Samaritan Medical Center-Deaconess Hospital Campus v. Maroney, 123 Wis. 2d 89, 365 N.W.2d 887 (Ct. App. 1985).

146.38 Annotation Outlining the methodology for determining privileged records under sub. (2). Franzen v. Children’s Hospital of Wisconsin, Inc., 169 Wis. 2d 366, 485 N.W.2d 603 (Ct. App. 1992).

146.38 Annotation Discussing the methodology for determining privileged communications under sub. (1m). 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. Wisconsin Health Care Liability Insurance Plan, 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 former sub. (3) (d), 1999 stats., and is 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 two 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 Co. of Wisconsin, 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580.

146.38 Annotation A health care provider cannot rely on this section, conferring a “peer review privilege,” to withhold documents that are relevant to a federal investigation. Because participants in peer review already expect that peer-review materials may be disclosed in certain circumstances, there appears to be nothing to be gained by recognizing the privilege in the limited circumstances presented by this case. United States v. Aurora Health Care, Inc., 91 F. Supp. 3d 1066 (2015).

146.40 146.40 Instructional programs for nurse aides; reporting client abuse.

146.40(1) (1) In this section:

146.40(1)(ad) (ad) “Client” means a person who receives services from an entity.

146.40(1)(ag) (ag) “Credential” has the meaning given in s. 440.01 (2) (a).

146.40(1)(as) (as) “Entity” has the meaning given in s. 50.065 (1) (c).

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)(b) (b) “Home health agency” has the meaning specified in s. 50.49 (1) (a).

146.40(1)(bo) (bo) “Hospice” means a hospice that is licensed under subch. VI of ch. 50.

146.40(1)(br) (br) “Hospital” has the meaning specified in s. 50.33 (2).

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 licensed practical nurse who is licensed or has a temporary permit under s. 441.10 or who holds a multistate license, as defined in s. 441.51 (2) (h), issued in a party state, as defined in s. 441.51 (2) (k).

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 (3g) or evaluated by competency evaluation programs for nurse aides approved under sub. (3m).

146.40(1)(e) (e) “Nursing home” has the meaning specified in s. 50.01 (3).

146.40(1)(f) (f) “Registered nurse” means a registered nurse who has a license under s. 441.06 or a temporary permit under s. 441.08 or who holds a multistate license, as defined in s. 441.51 (2) (h), issued in a party state, as defined in s. 441.51 (2) (k).

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. 441.06 (1) (e) or 441.10 (1) (f).

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) or (3g), or has been issued a waiver from completing instruction in an instructional program under sub. (2g) (b), and has successfully completed a competency evaluation program that is approved under sub. (3m). In order to be eligible under this paragraph, an individual who successfully completes instruction in an instructional program for nurse aides that is approved under sub. (3g) and who previously completed a competency evaluation program in another state must successfully complete a competency evaluation program that is approved under sub. (3m), regardless of whether the competency evaluation program that the individual completed in another state is the same as or substantially similar to a competency evaluation program that is approved under sub. (3m).

146.40(2)(ac) (ac) The individual has been added to the registry under sub. (4g) as provided under sub. (2g) (a).

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) or (3g) 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)

146.40(2)(g)1. 1. 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(2)(g)2. 2. 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. (ac), successfully completes a competency evaluation program for nurse aides that is approved by the department under sub. (3m).

146.40(2d) (2d) 

146.40(2d)(a) (a) Notwithstanding sub. (2), subject to par. (b), a hospital, nursing home, intermediate care facility for persons with an intellectual disability, home health agency, or hospice may employ or contract for the services of an individual as a nurse aide, if the individual is enrolled in an instructional program for nurse aides that is approved under sub. (3) or (3g), is employed part-time as a nurse’s assistant, home health aide, or hospice aide fewer than 120 days, and has a preceptor. The requirements of sub. (2) (c) 1. and 2. apply to individuals under this subsection. An individual employed or contracted as a nurse aide under this subsection shall pass a Wisconsin-approved nurse aide competency evaluation examination within 120 calendar days of the start of the individual’s part-time employment as a nurse aide or may not continue to be employed or contracted as a nurse aide under this subsection.

146.40(2d)(b) (b) The department shall, as soon as possible after March 24, 2024, request any necessary federal approval required to implement this subsection and, if approval is granted or if no federal approval is required, the department shall implement this subsection. If federal approval is necessary but not granted, the department may not implement this subsection.

146.40(2g) (2g) 

146.40(2g)(a) (a) An individual who has previously been employed in another state as a nurse aide for 2,088 hours or more within the prior 2-year period and who has successfully completed a competency evaluation program in that other state that is the same as or substantially similar to one approved under sub. (3m) may apply to the department to be eligible to be employed or contracted as a nurse aide under sub. (2) (ac). The department shall verify that the individual was employed in that state as a nurse aide for 2,088 hours in the 2-year period prior to the date of application. If the individual is so eligible, the department shall add the individual to the registry under sub. (4g).

146.40(2g)(b) (b) An individual who has previously been employed in another state as a nurse aide for 2,088 hours or more within the prior 2-year period but who has not successfully completed a competency evaluation program that is the same as or substantially similar to one approved under sub. (3m) may apply to the department to be eligible for a waiver from completing instruction in an instructional program for nurse aides under subs. (3) and (3g). The department shall verify that the individual was employed in that state as a nurse aide for 2,088 hours in the 2-year period prior to the date of application. If the individual is so eligible, the department shall issue the individual a waiver so that the individual may complete a competency evaluation program under sub. (3m) without completing instruction in an instructional program for nurse aides under sub. (3) or (3g).

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(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 may not require an instructional program to exceed the federally required minimum total training hours or minimum hours of supervised practical training under 42 CFR 483.152 (a). 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(3g) (3g) Except as provided in sub. (4d), the department shall approve instructional programs for nurse aides that apply for approval; that satisfy standards for approval that are promulgated by rule by the department; and that allow an individual who has successfully completed an instructional program for nurse aides in another state to receive instruction in this state that, when combined with the instructional program in the other state, will result in the individual having received substantially the same instruction as an individual who successfully completes an instructional program approved under sub. (3). Only an individual so described may complete an instructional program for nurse aides that is approved under this subsection. 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 requirements of this subsection. 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 requirements of this subsection or operates under conditions that are other than those contained in the application approved by the department.