LRB-3728/2
MDK:cmh:km
1999 - 2000 LEGISLATURE
January 12, 2000 - Introduced by
Joint Legislative Council. Referred to Health,
Utilities, Veterans and Military Affairs.
SB317,1,12
1An Act to amend 15.405 (7) (b) 3., 448.02 (3) (c) and 448.02 (4) and (9) (intro.);
2and
to create 69.18 (2) (g), 146.365, 440.037, 448.02 (3) (d), 979.01 (1n) and
3979.01 (1p) of the statutes;
relating to: priorities, completion guidelines and
4notices required for health care professional disciplinary cases; identification
5of health care professionals in possible need of investigation; additional public
6members for the medical examining board; authority of the medical examining
7board to limit credentials and impose civil forfeitures; reporting requirements
8for reports submitted to the national practitioner data bank; inclusion of health
9care professionals who practice alternative forms of health care on panels of
10health care experts established by the department of regulation and licensing;
11indication of therapeutic-related deaths on certificates of death; and providing
12a penalty.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the joint legislative council in
the bill.
For further information see the state 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:
Prefatory note: This bill is recommended by the joint legislative council's special
committee on discipline of health care professionals. Provisions of the bill are described
in this prefatory note and in notes to individual provisions of the bill.
Duties of Department of Regulation and Licensing (DORL) in Health Care
Professional Discipline Process
The bill imposes on DORL a variety of duties related to the state disciplinary
process that applies to licensed and certified health care professionals, as defined under
the proposal.
In some instances, the duties imposed on DORL under the proposal reflect current
practices of DORL. By giving formal statutory recognition to these current practices, the
public policy of these practices is supported and the continuation of the practices is
guaranteed. In other instances, new duties are imposed on DORL where the special
committee concluded that the fairness or efficiency of or public confidence in the health
care professional disciplinary process might be improved.
In general terms, these provisions of the bill:
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
1Section
1
. 15.405 (7) (b) 3. of the statutes is amended to read:
SB317,4,22
15.405
(7) (b) 3.
Three Five public members.
Note: Adds 2 public members to the board.
SB317, s. 2
3Section
2
. 69.18 (2) (g) of the statutes is created to read:
SB317,5,2
169.18
(2) (g) 1. In this paragraph, "therapeutic-related death" means a death
2that resulted from any of the following:
SB317,5,43
a. Complications of surgery, prescription drug use, or other medical procedures,
4performed or given for disease conditions.
SB317,5,65
b. Complications of surgery, prescription drug use, or other medical procedures,
6performed or given for accidental or intentional traumatic conditions.
SB317,5,87
c. Therapeutic misadventures, when a medical procedure may have been done
8incorrectly or resulted from an error in dosage or type of drug administered.
SB317,5,119
2. On the form for a certificate of death prescribed by the state registrar under
10sub. (1) (b), the state registrar shall provide for a separate section for the indication
11of 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
12Section
3. 146.365 of the statutes is created to read:
SB317,5,18
13146.365 Submission of reports to the medical examining board. Reports
14that are required to be submitted to the national practitioner data bank under
42
15USC 11131 and
11133 shall be submitted to the medical examining board in
16accordance with the time limits set forth in
45 CFR 60.5 (a) and (c). Any person who
17violates this section may be required to forfeit not more than $10,000 for each
18violation.
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.