SB139: Bill Text

LRB-0871/2

MDK:kmg:rs

2001 - 2002 LEGISLATURE

2001 Senate BILL 139

April 11, 2001 - Introduced by Joint Legislative Council. Referred to Committee on Health, Utilities, Veterans and Military Affairs.

SB139,2,2 An Act to renumber 979.01 (1g) (a) to (i); to renumber and amend 979.01 (1) and 979.01 (1g) (intro.); to amend 15.405 (7) (b) 3., 448.02 (3) (c), 448.02 (4) and (9) (intro.), 979.01 (1m) and 979.01 (1r); and to create 69.18 (2) (g), 146.365, 440.037, 448.02 (3) (d), 979.01 (1n) and 979.01 (1p) of the statutes; relating to: priorities, completion guidelines, and notices required for health care professional disciplinary cases; identification of health care professionals in possible need of investigation; additional public members for the medical examining board; authority of the medical examining board to limit credentials and impose forfeitures; reporting requirements for reports submitted to the national practitioner data bank; inclusion of health care professionals who practice alternative forms of health care on panels of health care experts established by the department of regulation and licensing; indication of therapeutic-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 Section 1 . 15.405 (7) (b) 3. of the statutes is amended to read:

SB139,5,1 15.405 (7) (b) 3. Three Five public members.

Note: Adds 2 public members to the board.

SB139, s. 2 Section 2 . 69.18 (2) (g) of the statutes is created to read:

SB139,5,4 69.18 (2) (g) 1. In this paragraph, "therapeutic-related death" means a death that resulted from any of the following:

SB139,5,6 a. Complications of surgery, prescription drug use, or other medical procedures, performed or given for disease conditions.

SB139,5,8 b. Complications of surgery, prescription drug use, or other medical procedures, performed or given for accidental or intentional traumatic conditions.

SB139,5,10 c. Therapeutic misadventures, when a medical procedure may have been done incorrectly or resulted from an error in dosage or type of drug administered.

SB139,5,13 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 12 of the bill.

SB139, s. 3 Section 3. 146.365 of the statutes is created to read: