LRB-1642/1
DAK:cmh:jf
1999 - 2000 LEGISLATURE
December 22, 1999 - Introduced by Senators Risser, Burke, Erpenbach and
Rosenzweig, cosponsored by Representatives Musser, Plouff, Miller, Boyle,
Petrowski, Wasserman, Berceau and Bock. Referred to Committee on
Health, Utilities, Veterans and Military Affairs.
SB313,1,3
1An Act to amend 895.46 (1) (a); and
to create 51.035, 165.25 (6) (d), 655.003 (4),
2893.82 (2) (d) 4. and 895.46 (5) (c) of the statutes;
relating to: state agent status
3for certain psychiatrists who provide services under certain county contracts.
Analysis by the Legislative Reference Bureau
This bill provides that psychiatrists who contract directly with counties and
who provide publicly funded psychiatric services are state agents of the department
of health and family services (DHFS) for the purposes of representation by the
department of justice in any court actions that arise from their provision of these
psychiatric services. The bill also provides that psychiatrists who are employed by
or are under contract with private, nonprofit agencies that contract with county
departments of community programs or developmental disabilities services to
provide the psychiatrist's services are state agents of DHFS for the provision of those
services under the following conditions:
1. The board of the relevant county department of community programs or
developmental disabilities services approves, after determining that certain criteria
apply, a joint application of the psychiatrist and the private, nonprofit agency.
2. The department of administration (DOA) approves the application for a
period of one year and so notifies the applicants. Prior to its approval, DOA may
transmit the joint application to the medical examining board for review.
Amounts that are recoverable by civil suit against these psychiatrists as state
agents of DHFS are limited to $250,000 and judgments against them in these suits
that exceed applicable liability insurance are payable by the state.
The bill requires that a psychiatrist who is covered under the bill identify
himself or herself as a state agent to each patient receiving the publicly funded
services.
Lastly, the bill prohibits a psychiatrist or county that is covered under the bill
from being required to purchase liability insurance for the provision of the
psychiatric services that are covered under the bill.
For further information see the state and local 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:
SB313, s. 1
1Section
1. 51.035 of the statutes is created to read:
SB313,2,2
251.035 Psychiatrists as state agents. (1) In this section:
SB313,2,33
(a) "Medical assistance" has the meaning given under s. 49.43 (8).
SB313,2,54
(b) "Medicare" means coverage under part A or part B of title XVIII of the
5federal Social Security Act,
42 USC 1395 to
1395ccc.
SB313,2,86
(c) "Private agency" means a private, nonprofit corporation, as defined in s.
7181.0103 (17), which provides mental health services under a contract with a county
8department under s. 46.215, 46.22, 46.23, 51.42 or 51.437.
SB313,2,109
(d) "Psychiatrist" means a physician, as defined in s. 448.01 (5), who specializes
10in psychiatry.
SB313,2,12
11(2) All of the following are state agents of the department for the purposes of
12ss. 165.25 (6), 893.82 (3) and 895.46:
SB313,2,1513
(a) A psychiatrist who contracts with a county to provide, on a full-time or
14part-time, including hourly, basis, psychiatric services that are funded under s.
1551.42 or 51.437, for the provision of those services.
SB313,2,1716
(b) A psychiatrist, for the employment or contracted services specified in subd.
171., if the conditions of subd. 2. are met:
SB313,3,4
11. The psychiatrist provides psychiatric services, on a full-time or part-time,
2including hourly, basis, under employment by or under contract with a private,
3nonprofit agency that contracts with a county department under s. 51.42 or 51.437
4to provide the psychiatric services.
SB313,3,145
2. a. The psychiatrist and the private agency jointly submit an application to
6the county board appointed under s. 51.42 (4) (a) 1. or 2. or 51.437 (7) (a) 1. or 2. of
7the county department with which the private agency contracts and the board
8determines, after review, that the primary purpose of the private agency is to provide
9mental health services to patients in the public interest; that contracting with the
10private agency is a critical part of the mental health plan for the county under s. 51.42
11(3) (ar) 5. or of the proposed budget under s. 51.437 (4m) (j); and that a substantial
12majority of the mental health care received by a substantial majority of the patients
13served by the private agency is funded under s. 46.031 through the county
14department or is funded by medical assistance or medicare.
SB313,3,2415
b. After a determination, if any, is made under subd. 2. a. that the conditions
16specified under subd. 2. a. apply, the psychiatrist and the private agency jointly
17submit the application to the department of administration and that department
18approves the application. Before approving an application, the department of
19administration may send the application to the medical examining board for
20evaluation. The medical examining board shall evaluate any application submitted
21by the department of administration and return the application to the department
22of administration with the board's recommendation regarding approval. The
23department of administration shall notify the psychiatrist and the private agency of
24the department's decision to approve or disapprove the application.
SB313,4,8
1(3) Approval by the department of administration of a joint application of a
2psychiatrist and a private agency submitted under sub. (2) (b) 2. b. is valid for one
3year. If a psychiatrist and a private agency wish to renew approval, they shall submit
4a joint renewal application to the department of administration. The department of
5administration shall provide renewal application forms that are developed by the
6department of health and family services and that include questions about the
7activities that the psychiatrist has undertaken as an employe of or under contract
8with the private agency in the previous 12 months.
SB313,4,11
9(4) A psychiatrist who is a state agent of the department for the provision of
10services or employment as specified in sub. (2) shall identify himself or herself as a
11state agent to each patient to whom the psychiatrist provides those services.
SB313, s. 2
12Section
2. 165.25 (6) (d) of the statutes is created to read:
SB313,4,1613
165.25
(6) (d) Psychiatrists under s. 51.035 are covered by this section and shall
14be considered agents of the department of health and family services for purposes of
15determining which agency head may request the attorney general to appear and
16defend them.
SB313, s. 3
17Section
3. 655.003 (4) of the statutes is created to read:
SB313,4,2118
655.003
(4) A psychiatrist who provides professional services under the
19conditions described in s. 51.035 (2), with respect to those professional services
20provided by the psychiatrist for which he or she is covered by s. 165.25 and considered
21an agent of the department, as provided in s. 165.25 (6) (d).
SB313, s. 4
22Section
4. 893.82 (2) (d) 4. of the statutes is created to read:
SB313,4,2323
893.82
(2) (d) 4. A psychiatrist under s. 51.035.
SB313, s. 5
24Section
5. 895.46 (1) (a) of the statutes is amended to read:
SB313,6,8
1895.46
(1) (a) If the defendant in any action or special proceeding is a public
2officer or employe and is proceeded against in an official capacity or is proceeded
3against as an individual because of acts committed while carrying out duties as an
4officer or employe and the jury or the court finds that the defendant was acting within
5the scope of employment, the judgment as to damages and costs entered against the
6officer or employe in excess of any insurance applicable to the officer or employe shall
7be paid by the state or political subdivision of which the defendant is an officer or
8employe
, except that the state shall pay a judgment entered against a psychiatrist
9for the psychiatric services described in s. 51.035 (2) (a) or (b). This paragraph may
10not be construed to require that a psychiatrist or the county of a county department
11under s. 51.42 or 51.437 purchase liability insurance for the psychiatric services
12described in s. 51.035 (2) (a) or (b). Agents of any department of the state shall be
13covered by this section while acting within the scope of their agency. Regardless of
14the results of the litigation the governmental unit, if it does not provide legal counsel
15to the defendant officer or employe, shall pay reasonable attorney fees and costs of
16defending the action, unless it is found by the court or jury that the defendant officer
17or employe did not act within the scope of employment. The duty of a governmental
18unit to provide or pay for the provision of legal representation does not apply to the
19extent that applicable insurance provides that representation. If the employing
20state agency or the attorney general denies that the state officer, employe or agent
21was doing any act growing out of or committed in the course of the discharge of his
22or her duties, the attorney general may appear on behalf of the state to contest that
23issue without waiving the state's sovereign immunity to suit. Failure by the officer
24or employe to give notice to his or her department head of an action or special
25proceeding commenced against the defendant officer or employe as soon as
1reasonably possible is a bar to recovery by the officer or employe from the state or
2political subdivision of reasonable attorney fees and costs of defending the action.
3The attorney fees and expenses shall not be recoverable if the state or political
4subdivision offers the officer or employe legal counsel and the offer is refused by the
5defendant officer or employe. If the officer, employe or agent of the state refuses to
6cooperate in the defense of the litigation, the officer, employe or agent is not eligible
7for any indemnification or for the provision of legal counsel by the governmental unit
8under this section.
SB313, s. 6
9Section
6. 895.46 (5) (c) of the statutes is created to read:
SB313,6,1010
895.46
(5) (c) A psychiatrist under s. 51.035.
