STATE OF WISCONSIN
MEDICAL EXAMINING BOARD
------------------------------------------------------------------------------------------------------------
IN THE MATTER OF RULEMAKING : PROPOSED ORDER OF THE
PROCEEDINGS BEFORE THE : MEDICAL EXAMINING BOARD
MEDICAL EXAMINING BOARD : ADOPTING RULES
: (CLEARINGHOUSE RULE )
:
------------------------------------------------------------------------------------------------------------
PROPOSED ORDER
An order of the Medical Examining Board to create Med 10.02 (2m), (4m), and 10.03 (2)(f)4, relating to performance of physical examinations.
Analysis prepared by the Department of Safety and Professional Services.
-----------------------------------------------------------------------------------------------------------
ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Section 15.08 (5) (b), Stats., provides each examining board “[s]hall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . .” Section 448.40 (1), Stats., provides that “[t]he board may promulgate rules to carry out the purposes of this subchapter, including rules requiring the completion of continuing education, professional development, and maintenance of certification or performance improvement or continuing medical education programs for renewal of a license to practice medicine and surgery.” Related statute or rule:
Chapter Med 21 provides minimum standards for patient health care records. Plain language analysis:
The proposed rule expands unprofessional conduct to require that physicians either follow the policies established by their employers for the use of chaperones during physical examinations, or that physicians establish policies and follow them. Physicians will also be required to make their policy regarding the use of chaperones accessible to all patients. “Chaperone” is defined to mean an appropriately trained third person who has received basic training in the responsibility to protect patient privacy, the confidentiality of health information, and the requirements of clinical practice in the setting where the examination or inspection takes place. “Observer” is defined to mean an individual chosen by the patient to be present during an examination, and is presumed to include an adult family member, legal guardian, or legal custodian if the patient is twelve years of age or under.
Summary of, and comparison with, existing or proposed federal regulation:
None.
Comparison with rules in adjacent states:
Illinois:
Rules of the Illinois Department of Financial and Professional Regulation establish standards of conduct for physicians licensed in Illinois [68 Ill. Adm. Code 1285.110]. The rules do not require the use of chaperones during physical examinations.
Iowa:
Rules of the Iowa Board of Medicine provide the Board with authority to impose disciplinary sanctions for certain acts and offenses (653 IAC 23.1). The rules do not require the use of chaperones during physical examinations.
Michigan:
The Michigan Public Health Code establishes grounds for discipline of licensees and registrants (MCL 333.16221). The Code does not require the use of chaperones during physical examinations.
Minnesota:
The Minnesota Statutes provide the grounds for disciplinary action against a physician (2020 Minnesota Statutes, Section 147.091). These provisions do not require the use of chaperones during physical examinations. Summary of factual data and analytical methodologies:
The proposed rules were developed by obtaining input and feedback from the Medical Examining Board.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
The proposed rules were posted for a period of 14 days to solicit public comment on economic impact, including how the proposed rules may affect businesses, local government units, and individuals.
Effect on small business:
The proposed rules were posted for a period of 14 days to solicit public comment on economic impact, including how the proposed rules may affect businesses, local government units, and individuals.
Agency contact person:
Jameson R. Whitney, Attorney, Department of Safety and Professional Services, Division of Policy Development, P.O. Box 8366, Madison, Wisconsin 53708-8366; telephone 608-266-8098; email at DSPSAdminRules@wisconsin.gov. ------------------------------------------------------------------------------------------------------------
TEXT OF RULE
Section 1. Med 10.02 (2m) and (4m) are created to read:
Med 10.02 (2m) “Chaperone” means an individual whom a physician provides to be present during an examination or inspection that exposes the breasts, genitals, or rectal area. This may include any person who has received basic training in the responsibility to protect patient privacy, the confidentiality of health information, and the requirements of clinical practice in the setting where the examination or inspection takes place. This training may be in-person, remote, or recorded, and need not be of any specific duration. Clinic staff, medical students or other allied health professional students, residents, or fellows are presumed to be appropriately trained to serve as chaperones.
(4m) “Observer” means an individual chosen by the patient to be present during an examination or inspection that exposes the breasts, genitals, or rectal area. A patient’s adult family member, legal guardian, or legal custodian is presumed to be able to act as an observer if the patient is twelve years of age or under.
