Chapter 146

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.

146.40(3m) (3m) The department shall review competency evaluation programs for nurse aides and, except as provided in sub. (4d), may approve those competency evaluation programs that satisfy standards for approval that are specified in rules promulgated by the department. The department may approve a competency evaluation program to be taken by an individual who completes an instructional program for nurse aides that is approved under sub. (3g) only if the competency evaluation program is the same as one to be taken by an individual who completes an instructional program for nurse aides that is approved under sub. (3). Under this subsection, the department may, after providing notice, suspend or revoke approval of a competency evaluation program or impose a plan of correction on the program if the competency evaluation program fails to satisfy the standards for approval or operates under conditions that are other than those contained in the application approved by the department.

146.40(4) (4) A competency evaluation program approved under sub. (3m) shall notify the department to include an individual on the registry under sub. (4g) (a) 1. after the individual has successfully completed the competency examination.

146.40(4d) (4d) 

146.40(4d)(a) (a) Except as provided in par. (am), the department shall require each applicant to provide the department with his or her social security number, if the applicant is an individual, or the applicant’s federal employer identification number, if the applicant is not an individual, as a condition of issuing an approval under sub. (3), (3g), or (3m).

146.40(4d)(am) (am) If an individual specified under par. (a) does not have a social security number, the individual, as a condition of obtaining approval, shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. An approval issued in reliance upon a false statement submitted under this paragraph is invalid.

146.40(4d)(b) (b) The department may not disclose any information received under par. (a) to any person except to the department of revenue for the sole purpose of requesting certifications under s. 73.0301 and to the department of workforce development for the sole purpose of requesting certifications under s. 108.227.

146.40(4d)(c) (c) Except as provided in par. (am), the department shall deny an application for the issuance of an approval specified in par. (a) if the applicant does not provide the information specified in par. (a).

146.40(4d)(d) (d) The department shall deny an application for the issuance of an approval specified in par. (a) or shall revoke an approval if the department of revenue certifies under s. 73.0301 that the applicant for or holder of approval is liable for delinquent taxes or if the department of workforce development certifies under s. 108.227 that the applicant for or holder of approval is liable for delinquent unemployment insurance contributions.

146.40(4d)(e) (e) An action taken under par. (c) or (d) is subject to review only as provided under s. 73.0301 (2) (b) and (5) or s. 108.227 (5) and (6), whichever is applicable.

146.40(4g) (4g) 

146.40(4g)(a) (a) The department shall establish and maintain a registry that contains all of the following:

146.40(4g)(a)1. 1. A listing of all individuals who are added to the registry as required under sub. (2g) and all individuals about whom the department is notified under sub. (4).

146.40(4g)(a)2. 2. A listing of all individuals about whom the department is notified under sub. (4r) (a) or (am), for whom the department makes findings under sub. (4r) (b) and to whom any of the following applies:

146.40(4g)(a)2.a. a. The individual waives a hearing or fails to notify the department under sub. (4r) (c).

146.40(4g)(a)2.b. b. A hearing officer finds reasonable cause to believe that the individual performed an action alleged under sub. (4r) (a) or (am).

146.40(4g)(a)3. 3. Findings of the department under sub. (4r) (b) or of the hearing officer under sub. (4r) (d) concerning the misappropriation of property or the neglect or abuse of a client by an individual listed under subd. 2.

146.40(4g)(a)4. 4. A brief statement, if any, of an individual about whom the department is notified under sub. (4) and who disputes the department’s findings under sub. (4r) (b) or the hearing officer’s findings under sub. (4r) (d).

146.40(4g)(b) (b) The department shall provide, upon receipt of a specific, written request, information requested that is contained in the registry under par. (a).

146.40(4g)(c) (c) Section 46.90 does not apply to this subsection.

146.40(4m) (4m) An instructional program under sub. (3) or (3g) for which the department has suspended or revoked approval or imposed a plan of correction or a competency evaluation program under sub. (3m) for which the department has suspended or revoked approval or imposed a plan of correction may contest the department’s action by sending, within 10 days after receipt of notice of the contested action, a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent. This subsection does not apply to a revocation of approval under sub. (4d) (d).

146.40(4r) (4r) 

146.40(4r)(a) (a) Any individual may report to the department that he or she believes that any person employed by or under contract with an entity has neglected or abused a client or misappropriated the client’s property.

146.40(4r)(am) (am)

146.40(4r)(am)1. 1. An entity shall report to the department any allegation of misappropriation of the property of a client or of neglect or abuse of a client by any individual employed by or under contract with the entity if the individual is under the control of the entity.

146.40(4r)(am)3. 3. An entity that intentionally fails to report an allegation of misappropriation of the property of a client or of neglect or abuse of a client may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

146.40(4r)(b) (b) Except as provided in pars. (em) and (er), the department shall review and investigate any report received under par. (a) or (am) and, if the allegation is substantiated, make specific, documented findings concerning the misappropriation of property or the neglect or abuse. The department shall, in writing, notify the individual specified in the report that the individual’s name and the department’s findings about the individual shall be listed in the registry under sub. (4g) (a) 2. and 3. unless the individual contests the listings in a hearing before the division of hearings and appeals created under s. 15.103 (1). The written notification shall describe the investigation conducted by the department, enumerate the findings alleging misappropriation of property or neglect or abuse of a client and explain the consequence to the individual specified in the report of waiving a hearing to contest the findings. The individual specified in the report shall have 30 calendar days after receipt of the notification to indicate to the department in writing whether he or she intends to contest the listing or to waive the hearing.

146.40(4r)(c) (c) If an individual under par. (b) notifies the department that he or she waives a hearing to contest the listings in the registry under par. (b), or fails to notify the department within 30 calendar days after receipt of a notice under par. (b), the department shall enter the name of the individual under sub. (4g) (a) 2. and the department’s findings about the individual under sub. (4g) (a) 3.

146.40(4r)(d) (d) If the person specified in the report received under par. (a) or (am) timely notifies the division of hearings and appeals created under s. 15.103 (1) that he or she contests the listings in the registry under par. (b), the division of hearings and appeals shall hold a hearing under the requirements of ch. 227. If after presentation of evidence a hearing officer finds that there is no reasonable cause to believe that the person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall dismiss the proceeding. If after presentation of evidence a hearing officer finds that there is reasonable cause to believe that the person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall so find and shall cause the name of the person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 2. and the hearing officer’s findings about the person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 3.

146.40(4r)(e) (e) The individual may provide the department with a brief statement disputing the department’s findings under par. (b) or the hearing officer’s findings under par. (d) and, if so provided, the department shall enter the statement under sub. (4g) (a) 4.

146.40(4r)(em) (em) If the department receives a report under par. (a) or (am) and determines that an individual who is the subject of the report holds a credential that is related to the individual’s employment at, or contract with, the entity, the department shall refer the report to the department of safety and professional services.

146.40(4r)(er) (er) The department may contract with private field investigators to conduct investigations of reports received by the department under par. (a) or (am).

146.40(4r)(f) (f) Section 46.90 does not apply to this subsection.

146.40(5) (5) 

146.40(5)(a) (a) The department shall promulgate rules specifying standards for approval in this state of instructional programs and competency evaluation programs for nurse aides. The standards shall include specialized training in providing care to individuals with special needs.

146.40(5)(b) (b) The department shall promulgate rules specifying criteria for acceptance by this state of an instructional program and a competency evaluation program that is certified in another state, including whether the other state grants nurse aide privileges to persons who have completed instruction in an instructional program that is approved under sub. (3) and whether one of the following is true:

146.40(5)(b)1. 1. If the other state certifies instructional programs and competency evaluation programs for nurse aides, the state’s requirements are substantially similar, as determined by the department, to certification requirements in this state.

146.40(5)(b)2. 2. If the other state certifies nurse aides, that state’s requirements are such that one of the following applies:

146.40(5)(b)2.a. a. The instructional programs required for attendance by persons receiving certificates are substantially similar, as determined by the department, to instructional programs approved under sub. (3).

146.40(5)(b)2.b. b. The competency evaluation programs required for successful completion by persons receiving certificates are substantially similar, as determined by the department, to competency evaluation programs approved under sub. (3m).