SB317: Bill Text

1. Require DORL to develop a system to establish the relative priority of cases involving possible unprofessional conduct on the part of a health care professional.

2. Require DORL to develop a system for identifying health care professionals who, even if not the subject of a specific allegation of, or specific information relating to, unprofessional conduct, may nonetheless warrant further evaluation and possible investigation.

3. Require DORL to notify a health care professional's place of practice or employment when a formal complaint alleging unprofessional conduct by the health care professional is filed.

4. Require DORL to give notice to a complainant and the health care professional when: (a) a case of possible unprofessional conduct by the health care professional is closed following screening for a possible investigation; (b) a case of possible unprofessional conduct by the health care professional has been opened for investigation; and (c) a case of possible unprofessional conduct by the health care professional is closed after investigation. In addition, DORL is required to provide a copy of the notices under (b) or (c) to an affected patient or the patient's family members.

5. Require that a patient or client of a health care professional who has been adversely affected by conduct of the health care professional that is the subject of a disciplinary proceeding be given opportunity to confer with DORL's prosecuting attorney concerning the disposition of the case and the economic, physical and psychological effect of the unprofessional conduct on the patient or client.

6. Require DORL to establish guidelines for the timely completion of each stage of the health care professional disciplinary process.

7. Require, if DORL establishes panels of health care experts to review complaints against health care professionals, that DORL attempt to include on the panels health care professionals who practice alternative forms of health care to assist in evaluating cases involving alternative health care.

8. Require, by May 1, 2001, DORL to submit to the legislature a report on the disciplinary process timelines that were implemented by the department as guidelines in February 1999.

Composition of Medical Examining Board (board)

Under current law, the board consists of the following 13 members, appointed for staggered four-year terms:

--Nine licensed doctors of medicine.

--One licensed doctor of osteopathy.

--Three public members.

This bill adds two public members to the board, resulting in a 15-member board with five public members, nine medical doctor members and one member who is a doctor of osteopathy.

Summary Limitation of Credential Issued by Board

Current law authorizes the board to suspend summarily any credential granted by it, pending a disciplinary hearing, for a period not to exceed 30 days when the board has in its possession evidence establishing probable cause to believe: (1) that the credential holder has violated the provisions of subch. II of ch. 448, stats.; and (2) that it is necessary to suspend the credential to protect the public health, safety or welfare. [s. 448.02 (4), stats.] The credential holder must be granted an opportunity to be heard during the determination of probable cause for suspension. The board is authorized to designate any of its officers to exercise the suspension authority but suspension by an officer may not exceed 72 hours. If a credential has been suspended pending hearing, the board may, while the hearing is in progress, extend the initial 30-day period of suspension for an additional 30 days. If the credential holder has caused a delay in the hearing process, the board may subsequently suspend the credential from the time the hearing is commenced until a final decision is issued or may delegate that authority to the administrative law judge.

This bill adds to the current summary suspension authority the authority to limit summarily any credential issued by the board. Thus, for example, a physician could be restricted from practicing in a certain area of practice pending a disciplinary hearing but be permitted to practice in nonrestricted areas.

Authority of Board to Impose a Forfeiture for Certain Unprofessional Conduct

Currently, the board has no authority to impose a civil forfeiture against a credential holder found guilty of unprofessional conduct. In order to give the board an additional tool to deal with unprofessional conduct that is currently available to certain other examining boards, this bill gives the board authority to assess a forfeiture of not more than $1,000 for each violation against a credential holder found guilty of unprofessional conduct. The authority to assess the civil forfeiture does not extend to a violation that constitutes negligence in treatment; the special committee concluded that exposure to malpractice awards and the costs of defending malpractice actions make unnecessary a civil forfeiture for negligence in treatment in the disciplinary context.

Reports to Board of Reports to National Practitioner Data Bank (NPDB); Penalty

Under current law, the Federal Health Care Quality Improvement Act [42 USC 11111 to 11152] requires certain entities to report information on physicians to the NPDB. Specifically, 42 USC 11131 requires entities (including insurance companies) that make payment under an insurance policy or in settlement of a malpractice action or claim to report information on the payment and the circumstances of the payment to the NPDB. Boards of medical examiners (in this state, the board) must report actions that suspend, revoke or otherwise restrict a physician's license or censure, reprimand or place a physician on probation; physician surrender of a license also must be reported. [42 USC 11132.] In addition, under 42 USC 11133, health care entities (which include hospitals, health maintenance organizations, group medical practices and professional societies) must report to the NPDB: professional review actions that adversely affect the clinical privileges of a physician for longer than 30 days; the surrender of a physician's clinical privileges while the physician is under investigation or in return for not investigating the physician; or a professional review action that restricts membership in a professional society.

Federal regulations require the information on malpractice payments to be reported to the NPDB within 30 days of a payment, and simultaneously to the board of medical examiners. [45 CFR 60.5 (a).] A payor is subject to a fine of up to $10,000 for each nonreported payment.

Federal regulations require health care entities to report adverse actions to the board of medical examiners within 15 days (which in turn has 15 days to forward the report to the NPDB). [45 CFR 60.5 (c).] The penalty for not complying with these reporting requirements is a loss of the immunity protections under the Health Care Quality Improvement Act.

This bill creates a state requirement that reports on medical malpractice payments and professional review actions by health care entities that are required to be submitted to the NPDB must be submitted to the board in accordance with the time limits set forth in 45 CFR 60.5 (a) and (c). A person that violates this requirement is subject to a forfeiture of not more than $10,000 for each violation.

Indication of Certain Therapeutic-Related Deaths on Death Certificate

Under current s. 69.18 (2) (d) 1., stats., if a death is the subject of a coroner's or medical examiner's determination under s. 979.01 or 979.03, stats., the coroner or medical examiner or a physician supervised by a coroner or medical examiner in the county where the event that caused the death occurred is required to complete and sign the medical certification part of the death certificate for the death and mail the death certificate within five days after the pronouncement of death or present the certificate to the person responsible for filing the death certificate within six days after the pronouncement of death.

Further, s. 69.18 (2) (f) provides that a person signing a medical certification part of the death certificate must describe, in detail, on a form prescribed by the state registrar, the cause of death; show the duration of each cause and the sequence of each cause if the cause of death was multiple; and, if the cause was disease, the evolution of the disease.

This bill provides that when a coroner or medical examiner receives a report of a death under s. 979.01, stats. (set forth in pertinent part in the note to Section 8 of this bill), and subsequently determines that the death was a therapeutic-related death, the coroner or medical examiner must indicate this determination on the death certificate. The bill creates a definition of therapeutic-related death based on the definition contained in the instruction manual on completing the death certificate published by the State of Wisconsin. The manual classifies three types of therapeutic-related deaths: death resulting from complications of surgery, prescription drug use or other medical procedures performed or given for disease conditions; death resulting from complications of surgery, drug use or medical procedures performed or given for traumatic conditions; or death resulting from "therapeutic misadventures", when medical procedures were done incorrectly or drugs were given in error. Further, the bill requires the state registrar to revise the death certificate to include a space in which determinations of therapeutic-related deaths may be recorded. Finally, the bill requires the coroner or medical examiner who determines that a death is therapeutic related to forward this information to DORL.

SB317, s. 1 Section 1 . 15.405 (7) (b) 3. of the statutes is amended to read:

SB317,4,2 15.405 (7) (b) 3. Three Five public members.

Note: Adds 2 public members to the board.

SB317, s. 2 Section 2 . 69.18 (2) (g) of the statutes is created to read:

SB317,5,2 69.18 (2) (g) 1. In this paragraph, "therapeutic-related death" means a death that resulted from any of the following:

SB317,5,4 a. Complications of surgery, prescription drug use, or other medical procedures, performed or given for disease conditions.

SB317,5,6 b. Complications of surgery, prescription drug use, or other medical procedures, performed or given for accidental or intentional traumatic conditions.

SB317,5,8 c. Therapeutic misadventures, when a medical procedure may have been done incorrectly or resulted from an error in dosage or type of drug administered.

SB317,5,11 2. On the form for a certificate of death prescribed by the state registrar under sub. (1) (b), the state registrar shall provide for a separate section for the indication of a therapeutic-related death as required under s. 979.01 (1n).

Note: Requires the state registrar of vital statistics to provide on the death certificate form a separate section for indicating a therapeutic-related death. See Section 8 of the bill.

SB317, s. 3 Section 3. 146.365 of the statutes is created to read:

SB317,5,18 146.365 Submission of reports to the medical examining board. Reports that are required to be submitted to the national practitioner data bank under 42 USC 11131 and 11133 shall be submitted to the medical examining board in accordance with the time limits set forth in 45 CFR 60.5 (a) and (c). Any person who violates this section may be required to forfeit not more than $10,000 for each violation.

Note: Creates a requirement that information reported to the NPDB, established by the Federal Health Care Quality Improvement Act of 1986, must also be reported to the board. The requirement applies to reports on medical malpractice payments and on certain professional review actions taken by health care entities. A person who violates this requirement may be required to forfeit not more than $10,000 for each violation. Note that "person" is broadly defined in s. 990.01 (26), stats.

SB317, s. 4 Section 4 . 440.037 of the statutes is created to read:

SB317,6,2 440.037 Duties of department regarding health care professional disciplinary process. (1) Definitions. In this section:

SB317,6,3 (a) "Health care credentialing authority" means the:

SB317,6,4 1. Board of nursing.

SB317,6,5 2. Chiropractic examining board.

SB317,6,6 3. Dentistry examining board.

SB317,6,7 4. Dietitians affiliated credentialing board.

SB317,6,8 5. Hearing and speech examining board.

SB317,6,10 6. Examining board of social workers, marriage and family therapists and professional counselors.

SB317,6,11 7. Medical examining board.

SB317,6,12 8. Optometry examining board.

SB317,6,13 9. Pharmacy examining board.

SB317,6,14 10. Physical therapists affiliated credentialing board.

SB317,6,15 12. Psychology examining board.

SB317,6,16 13. Podiatrists affiliated credentialing board.

SB317,6,17 (b) "Health care professional" means:

SB317,6,19 1. An individual who is licensed or certified by a health care credentialing authority.

SB317,6,20 2. An acupuncturist certified by the department under s. 451.04.

Note: Health care professionals included in the definition are: acupuncturists; audiologists; chiropractors; dental hygienists; dentists; dietitians; hearing instrument specialists; advanced practice prescriber nurses; licensed practical nurses; registered nurses; nurse midwives; occupational therapists; occupational therapy assistants; optometrists; pharmacists; physical therapists; physicians; physician assistants; podiatrists; private practice school psychologists; psychologists; respiratory care practitioners; and speech-language pathologists.

SB317,7,12 (2) Establishment of priority disciplinary cases. The department shall develop a system to establish the relative priority of disciplinary cases involving possible unprofessional conduct on the part of a health care professional. The prioritization system shall give highest priority to cases of unprofessional conduct that have the greatest potential to adversely affect the public health, safety and welfare. In establishing the priorities, the department shall give particular consideration to cases of unprofessional conduct that may involve the death of a patient or client, serious injury to a patient or client, substantial damages incurred by a patient or client or sexual abuse of a patient or client. The priority system shall be used to determine which cases receive priority of consideration and resources in order for the department and health care credentialing authorities to most effectively protect the public health, safety and welfare.

Note: Generally reflects current practice of DORL.

SB317,7,16 (3) Identification of health care professionals who may warrant evaluation. The department shall develop a system for identifying health care professionals who, even if not the subject of a specific allegation of, or specific information relating to, unprofessional conduct, may warrant further evaluation and possible investigation.

Note: Based on a recommendation contained in Evaluation of Quality of Care and Maintenance of Competence, Federation of State Medical Boards of the United States, Inc., 1998. The recommendation was included in a series of recommendations of the Federation's Special Committee on the Evaluation of Quality of Care and Maintenance of Competence, which were adopted as policy by the House of Delegates of the Federation of State Medical Boards of the United States, Inc., in May 1998.

The recommendation on which the above provision is based suggests that state medical boards develop a system of markers to identify licensees warranting evaluation. Narrative comments to the recommendation note that historically the disciplinary function of state medical boards may be characterized as reactive. The committee making the recommendation suggests that measures to prevent, in contrast to only reacting to, breaches of professional conduct and to improve physician practice will greatly enhance public protection; the development of a system of markers is one means to identify physicians, before a case of unprofessional conduct arises, who may be failing to maintain acceptable standards in one or more areas of professional physician practice as well as to identify opportunities to improve physician practice.

SB317,8,4 (4) Notice to health care professionals, complainants, patients and clients concerning disciplinary case. (a) In this subsection, "complainant" means a person who has requested the department or a health care credentialing authority to investigate a health care professional for possible unprofessional conduct.

SB317,8,6 (b) The department shall notify a health care professional in writing within 30 days after any of the following:

SB317,8,8 1. A case of possible unprofessional conduct by the health care professional is closed following screening for a possible investigation.

SB317,8,10 2. A case of possible unprofessional conduct by the health care professional has been opened for investigation.

SB317,8,12 3. A case of possible unprofessional conduct by the health care professional is closed after an investigation.

SB317,8,15 (c) The department shall make a reasonable attempt to provide the complainant with a copy of each notice made under par. (b) that relates to a disciplinary proceeding requested by the complainant.

SB317,8,19 (d) If a case of possible unprofessional conduct by a health care professional involves conduct adversely affecting a patient or client of the health care professional and the patient or client is not a complainant, the department shall make a reasonable attempt to do one of the following:

SB317,8,21 1. Provide the patient or client with a copy of each notice made under par. (b) 2. and 3. related to that case.

SB317,8,23 2. Provide the spouse, child, sibling, parent or legal guardian of the patient or client with a copy of each notice made under par. (b) 2. and 3. related to that case.

SB317,8,25 (e) Failure to provide a notice under this subsection is not grounds for appeal or dismissal.

Note: Paragraph (b) generally reflects current practice of DORL, although notice of the fact that a case of possible unprofessional conduct by a health care professional has been opened for investigation may be delayed by DORL currently if there is concern that such notice may adversely affect the investigation. The notice requirement of par. (b) only addresses the early stages of the disciplinary process because it is assumed that if a disciplinary case continues after an investigation is completed, the health care professional will be well aware of the course of proceedings from that point on.

The requirement of par. (c) is new and assures that a person who has made the effort to request an investigation for possible unprofessional conduct is given the same notice that the health care professional receives regarding the status of the early stages of the process.

The requirement of par. (d) is new. It recognizes that patients or clients are often interested in the early stages of a disciplinary case. If a case proceeds beyond the investigation stage, the patient or client and, in some cases, the family of the patient or client and others, will be given the opportunity to confer with DORL regarding the disposition of the case. See sub. (6) below.

SB317,9,4 (5) Notice of pending complaint to health care professionals' place of practice. (a) Within 30 days after a formal complaint alleging unprofessional conduct by a health care professional is filed, the department shall send written notice that a complaint has been filed to all of the following:

SB317,9,6 1. Each hospital where the health care professional has hospital staff privileges.

SB317,9,8 2. Each managed care plan, as defined under s. 609.01 (3c), for which the health care professional is a participating provider.

SB317,9,11 3. Each employer, not included under subd. 1. or 2., that employs the health care professional to practice the health care profession for which the health care professional is credentialed.

SB317,9,13 (b) If requested by the department, a health care professional shall provide information necessary for the department to comply with this subsection.

Note: New requirement. Because many health care professionals have multiple places of practice or employment, notifying all places of a health care professional's practice or employment will serve to alert them of the pending disciplinary action and allow them to determine if any action on their part might be desirable.

Note that reference to "formal complaint" in the provision refers to the complaint that is filed after a finding that there is probable cause to believe that the health care professional is guilty of unprofessional conduct. See, generally, ss. RL 2.06 and 2.08, Wis. Adm. Code.

SB317,10,2 (6) Opportunity for patients and clients to confer concerning discipline. (a) In this subsection "patient" means any of the following:

SB317,10,5 1. A patient or client of a health care professional who has been adversely affected by conduct of the health care professional that is a subject of a disciplinary proceeding.

SB317,10,7 2. A parent, guardian or legal custodian of a patient or client specified in subd. 1., if the patient or client is a child.

SB317,10,11 3. A person designated by a patient or client specified in subd. 1. or the spouse or a child, sibling, parent or legal guardian of a patient or client specified in subd. 1., if the patient or client is physically or emotionally unable to confer as authorized in this subsection.