Section 120.10. Liabilities; penalties.

 

(1)   Definition. In this section, "type of data" means inpatient, emergency department, ambulatory, fiscal, annual and other health care provider data required to be submitted to the department under this chapter.

(2)   Civil liability. In accordance with s. 153.76 , Stats., and except as provided in sub. (3) , whoever violates the patient confidentiality provisions defined in ss. 153.50 and 153.75 (1) (a) , Stats., shall be liable to the patient for actual damages and costs, plus exemplary damages of up to $1,000 for a negligent violation and up to $5,000 for an intentional violation.

(3)   Immunity from liability.

(a) In accordance with s. 153.77 , Stats., and except as provided in par. (b) , a health care provider that submits information to the department under this chapter is immune from civil liability for all of the following:

1. Any act or omission of an employee, official or agent of the health care provider that results in the release of a prohibited data element while submitting data to the department.

2. Any act or omission of the department that results in the release of data.

(b) The immunity provided under this subsection does not apply to intentional, willful or reckless acts or omissions by health care providers.

(4)   Criminal penalties. In accordance with s. 153.78 (1) , Stats., whoever intentionally violates s. 153.45 (5) or 153.50 , Stats., or rules related thereto under subchs. III and V of this chapter may be fined not more than $15,000 or imprisoned for not more than one year in the county jail or both.

(5)   Forfeitures.

(a) General . In accordance with s. 153.78 (2) , Stats., whoever violates ch. 153 , Stats. , or this chapter, except as provided in par. (c) , shall forfeit not more than $100 for each violation. Except as stated in s. 153.78 (2) , Stats., each day of a violation for each individual type of data the department requires to be submitted constitutes a separate offense.

(b) Effective date and duration of forfeitures.

1. `Forfeiture commencement and duration.' The forfeiture begins on the date the health care provider was in violation, as determined by the department, and is computed for the number of days the health care provider is in violation until the date the health care provider achieves compliance, except that no day in the period between the date on which a request for a hearing is filed under s. 227.44 , Stats., and the date of the conclusion of all administrative and judicial proceedings arising out of a decision under this subsection constitutes a violation.

2. `Collection of forfeiture.' The department may directly assess forfeitures. If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct the violation, the department shall send a notice of assessment to the alleged violator containing all of the following information:

a. The alleged specific violation of ch. 153 , Stats. , or this chapter.

b. The amount of the forfeiture per day.

c. The number of days the health care provider was in violation.

d. The total amount due or, if the violation is continuing at the time the notice is sent, a statement specifying how the alleged violator shall calculate the total amount due.

e. The due date of the forfeiture.

f. The right to contest the assessment under s. 227.44 , Stats.

3. `Due date for payment of forfeitures.' All forfeitures shall be paid to the department within 10 calendar days of receipt of notice of assessment or, if the forfeiture is contested under par. (c) , within 10 calendar days of receipt of the final decision under administrative review, unless the final administrative decision is appealed and the order stayed by court order under s. 227.52 , Stats. Receipt of notice is presumed within 5 days of the date the notice was mailed. The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

(c) Appeals of forfeitures . A health care provider may contest the department's assessment of a forfeiture by filing, within 10 calendar days after receipt of the department's notification of forfeiture assessment, a written request for hearing under s. 227.44 , Stats., with the department of administration's division of hearings and appeals created under s. 15.103 (1) , Stats. A request is considered filed when the request is received by the division of hearings and appeals. The division of hearings and appeals shall hold the hearing and issue a decision, in proposed form, no later than 30 calendar days after receiving the request for hearing, unless both parties agree to a later date, and shall provide at least 10 calendar days prior notification of the date, time and place for the hearing. Both parties may file comments on the proposed decision with the division of hearings and appeals within 30 calendar days from the date of issuance of the proposed decision. At the close of the comment period, the division shall forward the proposed decision and comments to the secretary of the department for issuance of a final decision, and the secretary of the department shall issue the final decision within 30 calendar days thereafter.

(d) Forfeitures for nonpayment of assessments. A hospital or freestanding ambulatory surgery center that does not comply with s. DHS 120.04 (4) (b) or health plan that does not comply with s. DHS 120.04 (4) (d) is subject to a forfeiture of $25 for each day after December 31 that the assessment is not paid, subject to a maximum forfeiture equal to the amount of the assessment due or $500, whichever is greater. A forfeiture under this subdivision does not relieve the hospital, association or health care plan from the responsibility of paying the corresponding assessment.

History: Cr. Register, December, 2000, No. 540 , eff. 1-1-01; CR 01-051 : am. (1), Register, September 2001 No. 549 eff. 10-1-01; corrections in (2), (3) (a) (intro.), (4), (5) (a) made under s. 13.92 (4) (b) 7. , Stats., Register January 2011 No. 661 .

Note

A hearing request should be addressed to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707, 608-266-3096. Hearing requests may be delivered in person to that office at 5005 University Ave., Room 201, Madison, WI. Microsoft Windows NT 6.1.7601 Service Pack 1