SB139,2,2
1An Act to renumber 979.01 (1g) (a) to (i);
to renumber and amend 979.01 (1)
2and 979.01 (1g) (intro.);
to amend 15.405 (7) (b) 3., 448.02 (3) (c), 448.02 (4) and
3(9) (intro.), 979.01 (1m) and 979.01 (1r); and
to create 69.18 (2) (g), 146.365,
4440.037, 448.02 (3) (d), 979.01 (1n) and 979.01 (1p) of the statutes;
relating to:
5priorities, completion guidelines, and notices required for health care
6professional disciplinary cases; identification of health care professionals in
7possible need of investigation; additional public members for the medical
8examining board; authority of the medical examining board to limit credentials
9and impose forfeitures; reporting requirements for reports submitted to the
10national practitioner data bank; inclusion of health care professionals who
11practice alternative forms of health care on panels of health care experts
1established by the department of regulation and licensing; indication of
2therapeutic-related deaths on certificates of death; and providing a 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 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:
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, 2003, 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 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 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
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 notice of a
death under s. 979.01, stats., 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.
SB139, s. 1
1Section
1
. 15.405 (7) (b) 3. of the statutes is amended to read:
SB139,5,1
115.405
(7) (b) 3.
Three Five public members.
Note: Adds 2 public members to the board.
SB139, s. 2
2Section
2
. 69.18 (2) (g) of the statutes is created to read:
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69.18
(2) (g) 1. In this paragraph, "therapeutic-related death" means a death
4that resulted from any of the following:
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a. Complications of surgery, prescription drug use, or other medical procedures,
6performed or given for disease conditions.
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b. Complications of surgery, prescription drug use, or other medical procedures,
8performed or given for accidental or intentional traumatic conditions.
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c. Therapeutic misadventures, when a medical procedure may have been done
10incorrectly or resulted from an error in dosage or type of drug administered.
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2. On the form for a certificate of death prescribed by the state registrar under
12sub. (1) (b), the state registrar shall provide for a separate section for the indication
13of 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 12 of the bill.
SB139, s. 3
14Section
3. 146.365 of the statutes is created to read:
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15146.365 Submission of reports to the medical examining board. Reports
16that are required to be submitted to the national practitioner data bank under
42
17USC 11131 and
11133 shall be submitted to the medical examining board in
18accordance with the time limits set forth in
45 CFR 60.5 (a) and (c). Any person who
19violates this section may be required to forfeit not more than $10,000 for each
20violation.
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.
SB139, s. 4
1Section
4
. 440.037 of the statutes is created to read:
SB139,6,3
2440.037 Duties of department regarding health care professional
3disciplinary process. (1) Definitions. In this section:
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(a) "Health care credentialing authority" means the:
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1. Board of nursing.
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2. Chiropractic examining board.
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3. Dentistry examining board.
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4. Dietitians affiliated credentialing board.
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5. Hearing and speech examining board.
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6. Examining board of social workers, marriage and family therapists and
11professional counselors.
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7. Medical examining board.
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8. Optometry examining board.
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9. Pharmacy examining board.
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10. Physical therapists affiliated credentialing board.
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12. Psychology examining board.
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13. Podiatrists affiliated credentialing board.
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(b) "Health care professional" means:
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1. An individual who is licensed or certified by a health care credentialing
20authority.
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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.
SB139,7,12
1(2) Establishment of priority disciplinary cases. The department shall
2develop a system to establish the relative priority of disciplinary cases involving
3possible unprofessional conduct on the part of a health care professional. The
4prioritization system shall give highest priority to cases of unprofessional conduct
5that have the greatest potential to adversely affect the public health, safety, and
6welfare. In establishing the priorities, the department shall give particular
7consideration to cases of unprofessional conduct that may involve the death of a
8patient or client, serious injury to a patient or client, substantial damages incurred
9by a patient or client, or sexual abuse of a patient or client. The priority system shall
10be used to determine which cases receive priority of consideration and resources in
11order for the department and health care credentialing authorities to most
12effectively protect the public health, safety, and welfare.
Note: Generally reflects current practice of DORL.
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13(3) Identification of health care professionals who may warrant evaluation. 14The department shall develop a system for identifying health care professionals who,
15even if not the subject of a specific allegation of, or specific information relating to,
16unprofessional 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.
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1(4) Notice to health care professionals, complainants, patients, and clients
2concerning disciplinary case. (a) In this subsection, "complainant" means a person
3who has requested the department or a health care credentialing authority to
4investigate a health care professional for possible unprofessional conduct.
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(b) The department shall notify a health care professional in writing within 30
6days after any of the following:
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1. A case of possible unprofessional conduct by the health care professional is
8closed following screening for a possible investigation.
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2. A case of possible unprofessional conduct by the health care professional has
10been opened for investigation.
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3. A case of possible unprofessional conduct by the health care professional is
12closed after an investigation.
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(c) The department shall make a reasonable attempt to provide the
14complainant with a copy of each notice made under par. (b) that relates to a
15disciplinary proceeding requested by the complainant.
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(d) If a case of possible unprofessional conduct by a health care professional
17involves conduct adversely affecting a patient or client of the health care professional
18and the patient or client is not a complainant, the department shall make a
19reasonable attempt to do one of the following:
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1. Provide the patient or client with a copy of each notice made under par. (b)
212. and 3. related to that case.
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2. Provide the spouse, child, sibling, parent, or legal guardian of the patient or
23client with a copy of each notice made under par. (b) 2. and 3. related to that case.
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1(e) Failure to provide a notice under this subsection is not grounds for appeal
2or 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.