2011 Wisconsin Act 2 Health Care Services Review Use of Health Care Reports
As many of you may be aware, Governor Scott Walker signed 2011 Wisconsin Act 2 into law on January 27, 2011, effective February 1, 2011. The new law makes changes to Wisconsin Statutes in several areas including access to and the use of health care services reviews and evaluations, and the use of health care reports and documents. The purpose of this memo is to provide information to health care providers regarding the effects this law has on the Department of Health Services/Division of Quality Assurance (DQA) activities. The complete text of 2011 Wisconsin Act 2 can be found at: http://legis.wisconsin.gov/2011/data/acts/11Act2.pdf
Health care services review; confidentiality of information
Section 146.38, Wis. Stats., outlines the law regarding the confidentiality and use of information obtained in connection with, and the records of, a health services review or evaluation. The reviews identified in this section of the Statute generally do not refer to the review of health services that are conducted by a regulatory agency pursuant to the agency's regulatory authority. The health services reviews and evaluation in s. 146.38 are often conducted by a peer review committee, quality assessment and improvement committee or, in some federally certified programs, the Quality Assessment and Performance Improvement Program (QAPI Program) or by a person or an organization retained to conduct health care services reviews or evaluations.
Prior to the passage of Act 2, the law provided that a person who participates in a review or evaluation of health care services may not disclose information acquired in connection with the review or the records of the review or evaluation unless agreed upon by the health care provider. This provision remains intact. The statute specifies other exceptions for disclosure of information or review and evaluation records. Providers are encouraged to review the Act.
Certain new provisions in the law
Wisconsin Act 2 defines an "incident or occurrence report" for purposes of a health services review or evaluation under s. 146.38. In that section, an "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.
Like health services review and evaluation reports prior to passage of Act 2, an incident or occurrence report, as defined in Act 2, is generally not accessible to the Division of Quality Assurance.
Effect on DHS/DQA survey activities
Wisconsin Act 2 does not affect the survey activities conducted by the Division of Quality Assurance and its staff. The law does not change access by the Division of Quality Assurance and its staff to information from a health care provider consistent with the provisions in s. 50.07 (1) (c), Wis. Stats. Section 146.38, Wis. Stats., does not affect the Department's access to a health care provider's records that are not a part of a health services review or evaluation including, for example, a patient's or resident's medical or health care record.
Administrative codes require health care providers to document an accurate representation of the patient or resident, and to provide sufficient evidence of the care provided including response to treatment, change in condition and changes in treatment. The law does not change access to this information by the Division of Quality Assurance or its staff.
The new law does not change provider reporting requirements under the Wisconsin Caregiver Law, including required investigations of client or resident abuse, neglect or misappropriation of client or resident property and the mandatory completion of the Misconduct Incident Report, F-62447. The new law does not change access to required investigations of caregiver misconduct or to the Misconduct Incident Report form by the Division of Quality of Assurance or its staff. See DQA Memo DQA 04-028 and DQA Memo 10-008 for specific requirements.
Community Based Residential Facilities and Residential Care Apartment Complexes
Community Based Residential Facilities (CBRF) and Residential Care Apartment Complexes (RCAC) are not required under s.146.38, Wis. Stats., or Wisconsin Administrative Code, DHS 83 or DHS 89, to conduct health care services reviews or to have a quality assessment and improvement committee. However, the provisions under Wisconsin Act 2 and the recently passed Budget bill extend to a CBRF and RCAC if the facility conducts or retains a person or organization to conduct a review or evaluation of health care services.
Use of health care reports
The new law prohibits the use of reports that the Division of Quality Assurance requires a health care provider to give and statements of, or records of interviews with employees of a health care provider obtained by the Division of Quality Assurance as evidence in a civil or criminal proceeding brought against a health care provider.
The new law does not change access to Division of Quality Assurance survey records, including Statements of Deficiencies and Plans of Correction. This information is available to the public from the Division of Quality Assurance through Wisconsin's Public Records Law.
Contact information of staff in DQA to answer questions
Questions from nursing homes and facilities serving people with developmental disabilities should be directed to the Regional Field Operations Director for the region is which your facility is located.
Questions from community based residential facilities and residential care apartment complexes should be directed to the Regional Assisted Living Director for the region is which your facility is located.
Questions from hospitals and hospices should be directed to the Section Chief for the region in which your facility or agency is located.
The Division of Quality Assurance is sending this information to providers and asking administrators/managers to inform their staff of their responsibilities under the law. Thank you for your attention to this matter. If you have question about this information, please contact the appropriate staff listed above.
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Last Updated: August 26, 2011