AB1011,1,5 An Act to amend 146.81 (4); and to create 50.373, 146.83 (3f) (b) 3m. and 655.27 (1g) of the statutes; relating to: video recording of surgical procedures, providing an exemption from emergency rule procedures, granting rule-making authority, requiring the exercise of rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill creates a requirement for hospitals, ambulatory surgical centers, or any other places where surgical procedures are performed — referred to in the bill as surgical facilities — to offer surgical patients the option to have their surgical procedures and discharge instructions videotaped. Surgical facilities must provide notice of the option and all related procedures and conditions set forth in the bill. For purposes of this bill, a surgical procedure is one for which a surgical or other invasive procedure is performed upon a patient under conscious sedation, deep sedation, regional anesthesia, or general anesthesia. If a patient makes a request to have a surgical procedure recorded, this bill requires that the surgical facility, or its designee, record the surgical procedure with both audio and color video. When recording of a surgical procedure is requested, the facility must continuously record with color video and audio all activity in the surgical suite from the time preparation for the surgery begins until all activity related to the surgery, including cleanup, is complete. The bill requires that the recording must also include any preoperative communication regarding the surgical procedure between the surgical practitioner and the patient and any surgical time out, regardless of where those communications take place. If the surgical patient is incapacitated, the surgical facility is required to provide another authorized person with notice of the option for video recording, and that person may request that a recording be made. Similarly, if the surgical patient is a minor, the surgical facility must notify a parent, guardian, or legal custodian of the option for video recording and allow that person to make a request for a recording on behalf of the minor. A patient may also request that his or her discharge instructions be recorded. The surgical facility may determine if these instructions will be videotaped or audiotaped.

The bill also allows a physician or certain other individual who holds a valid license or other credential that allows him or her to perform surgical procedures and who is scheduled to perform a surgical patient's surgical procedure to request that a recording be made. A health care provider who provides the patient with discharge instructions may also request that those instructions, as provided, be recorded. A surgical facility must comply with these provider requests so long as certain conditions are met, including that the surgical patient or other person authorized to make a decision on behalf of the patient does not object. Under the bill, in certain limited emergency circumstances, surgical facilities are not required to provide the option of recording or to comply with a request for recording. If the facility is not required to comply with a request for recording due to an emergency, the facility must still provide the patient with the option to have his or her discharge instructions recorded.

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 this bill, a surgical patient may complete an advance request for recording, which permits an individual who is of sound mind and over the age of 18 to request video recording for future surgical procedures. The individual may complete an advance request for a single specific surgical procedure or set of discharge instructions, or for all future surgical procedures and discharge instructions to which this bill would apply. An advance request must be completed voluntarily, and must be in writing and signed and dated in the presence of a witness over the age of 18. The advance request may be revoked at any time.

This bill provides that a health care provider who knowingly refuses to comply with a patient request for recording is subject to a forfeiture of up to $25,000 for each violation. A surgical facility that fails to provide a required notice of the option for recording, including information regarding the procedures, the fees, the conditions, the surgical practitioner's request option, and the advance request option, is subject to a forfeiture of up to $25,000 for each violation. The bill also provides penalties for interference with an advance request for recording, and for unauthorized disclosure of a recording.

Under this bill, the Department of Health Services is required to promulgate rules establishing standards relating to the recording equipment and the recording. The department may promulgate additional rules as necessary to implement and administer the provisions of the bill. 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.

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

AB1011,1 Section 1 . 50.373 of the statutes is created to read:

AB1011,3,3 50.373 Video recording of surgical procedures. (1) Definitions. In this section:

AB1011,3,6 (a) “Conscious sedation” is a drug-induced depression of consciousness during which patients respond purposefully to verbal commands, either alone or accompanied by light tactile stimulation.

AB1011,4,3 (b) “Deep sedation” is a drug-induced depression of consciousness during which patients cannot be easily aroused but respond purposefully following repeated or painful stimulation.

AB1011,4,6 (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.

AB1011,4,9 (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.

AB1011,4,11 (e) “Guardian” means the person named by the court having the duty and authority of guardianship.

AB1011,4,13 (f) “Health care provider" means a person or entity described under s. 146.81 (1) (a) to (p) and includes any surgical facility.

AB1011,4,16 (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.

AB1011,4,19 (h) “Legal custodian” means a person, other than a parent or guardian, or an agency to whom legal custody of the child has been transferred by a court, but does not include a person who has only physical custody of the child.

AB1011,4,20 (i) “Patient health care records" has the meaning given in s. 146.81 (4).

AB1011,4,22 (j) “Regional anesthesia” means use of local anesthetics to make a specific part of the body numb to prevent pain and allow for completion of a surgical procedure.

AB1011,4,25 (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.

AB1011,5,2 (L) “Surgical patient" means a patient who is scheduled to undergo a surgical procedure.