SB227: Bill Text

LRB-1475/1

MDK:kmg:jf

2003 - 2004 LEGISLATURE

2003 Senate BILL 227

August 13, 2003 - Introduced by Senators Roessler, Schultz and Risser, cosponsored by Representatives Underheim, Albers, Hundertmark, Gunderson, J. Lehman and Townsend. Referred to Committee on Health, Children, Families, Aging and Long Term Care.

SB227,2,2 An Act to amend 15.405 (7) (b) 3., 448.02 (3) (c) and 448.02 (4) and (9) (intro.); and to create 146.365, 440.037, 448.02 (3) (d) 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; reports by coroners and medical examiners regarding therapeutic-related deaths; providing an exemption from rule-making procedures; requiring the exercise of rule-making authority; and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes changes to current law regarding all of the following: 1) disciplinary actions involving certain health care professionals; 2) the authority of the Medical Examining Board; 3) malpractice reports that are required under federal law; and 4) death reports by coroners and medical examiners. These changes are described below.

Discipline of health care professionals

The bill imposes various duties on the Department of Regulation and Licensing (DRL) related to disciplining the following health care professionals that are regulated by DRL or a board in DRL: 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.

The bill requires DRL to do all of the following:

1. Develop a system to establish the relative priority of disciplinary cases involving possible unprofessional conduct by health care professionals.

2. Promulgate rules establishing 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. Notify a health care professional's hospital, place of practice or employment, or defined network plan, such as a health maintenance organization or preferred provider plan, when a formal complaint alleging unprofessional conduct by the health care professional is filed.

4. Give notice to a complainant and health care professional when any of the following occurs regarding a disciplinary case of possible unprofessional conduct: a) the case is closed following screening for a possible investigation; b) the case is opened for investigation; or c) the case is closed after investigation. In addition, DRL must provide a copy of the notices under b) or c) to an affected patient or the patient's family members.

5. Give 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 an opportunity to confer with DRL's prosecuting attorney.

6. Establish guidelines for the timely completion of each stage of the health care professional disciplinary process. The guidelines are exempt from rule-making procedures that are otherwise applicable.

Also, the bill requires that, if DRL establishes panels of health care experts to review complaints against health care professionals, DRL must 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.

The bill also requires DRL to submit to the legislature by May 1, 2005, a report on disciplinary process time lines that were implemented by DRL as guidelines in February 1999.

Medical Examining Board

Current law allows the Medical Examining Board, under specified circumstances, to suspend summarily a professional credential issued by the board, pending a disciplinary hearing, for a limited period of time. This bill also allows the Medical Examining Board to limit summarily a credential under the same circumstances and for the same period of time. As a result, under the bill, the Medical Examining Board may limit a credential holder to specified practice areas, rather than completely suspending the credential holder's right to practice, pending a disciplinary hearing.

Also under current law, the Medical Examining Board has no authority to impose a forfeiture against a credential holder found guilty of unprofessional conduct. This bill authorizes the Medical Examining Board to assess a forfeiture of not more than $1,000 for each violation against a credential holder found guilty of unprofessional conduct. However, this authority does not extend to a violation that constitutes negligence in treatment.

In addition, the bill adds two public members to the Medical Examining Board. As a result, under the bill, the Medical Examining Board has the following 15 members: five public members, nine physician members, and one member who is a doctor of osteopathy.

Malpractice and disciplinary reports

Under current federal law, certain entities are required to report information on physicians to a national practitioner data bank maintained by the U.S. Department of Health and Human Services. Insurance companies and other entities must report to the data bank information about payments made under an insurance policy or in settlement of a malpractice claim. Also, state boards, such as the Medical Examining Board, must make reports regarding disciplinary actions taken against physicians. In addition, hospitals, health maintenance organizations, group medical practices, professional societies, and other health care entities must report the following: 1) professional review actions that adversely affect the clinical privileges of a physician for longer than 30 days; 2) the surrender of a physician's clinical privileges while the physician is under investigation or in return for not investigating the physician; and 3) a professional review action that restricts membership in a professional society.

Current federal law requires the reports to be made within specified deadlines and imposes penalties for not complying with the requirements.

This bill creates a requirement under state law to comply with the reporting requirements described above. A person who violates this requirement is subject to a forfeiture under state law of not more than $10,000 for each violation.

Death reports

Current law requires a coroner or medical examiner to be notified if a homicide, suicide, or accidental death occurs, or if a death occurs under specified circumstances, including unexplained, unusual, or suspicious circumstances. A coroner or medical examiner who receives such a notification must immediately notify a district attorney about the death.

This bill also requires a coroner or medical examiner who receives such a notification to also report the death to DRL, if the coroner or medical examiner determines that the death was a therapeutic-related death. The bill defines a "therapeutic-related death" as one resulting from complications of surgery, drug use, or other medical procedures for disease or traumatic conditions, or resulting from a therapeutic misadventure in which medical procedures were done incorrectly or drugs were given in error.

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:

SB227, s. 1 Section 1 . 15.405 (7) (b) 3. of the statutes is amended to read:

SB227,4,2 15.405 (7) (b) 3. Three Five public members.

SB227, s. 2 Section 2. 146.365 of the statutes is created to read:

SB227,4,9 146.365 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.

SB227, s. 3 Section 3 . 440.037 of the statutes is created to read:

SB227,4,12 440.037 Duties of department regarding health care professional disciplinary process. (1) Definitions. In this section:

SB227,4,13 (a) "Health care credentialing authority" means any of the following:

SB227,4,14 1. Board of nursing.

SB227,5,1 2. Chiropractic examining board.

SB227,5,2 3. Dentistry examining board.

SB227,5,3 4. Dietitians affiliated credentialing board.

SB227,5,4 5. Hearing and speech examining board.

SB227,5,6 6. Marriage and family therapy, professional counseling, and social work examining board.

SB227,5,7 7. Medical examining board.

SB227,5,8 8. Optometry examining board.

SB227,5,9 9. Pharmacy examining board.

SB227,5,10 10. Physical therapists affiliated credentialing board.

SB227,5,11 12. Psychology examining board.

SB227,5,12 13. Podiatrists affiliated credentialing board.

SB227,5,13 (b) "Health care professional" means:

SB227,5,15 1. An individual who is licensed or certified by a health care credentialing authority.

SB227,5,16 2. An acupuncturist certified by the department under s. 451.04.

SB227,6,3 (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.

SB227,6,10 (3) Identification of health care professionals who may warrant evaluation. (a) The department shall promulgate rules that establish 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. Rules promulgated under this paragraph may phase in the applicability of the system to different health care professionals as determined by the department.

SB227,6,12 (b) Before promulgating any rules under par. (a), the department shall consult with each of the following:

SB227,6,14 1. Professional and trade associations that, as determined by the department, represent the interests of health care professionals.

SB227,6,15 2. Each health care credentialing authority.

SB227,6,19 (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.

SB227,6,21 (b) The department shall notify a health care professional in writing within 30 days after any of the following:

SB227,6,23 1. A case of possible unprofessional conduct by the health care professional is closed following screening for a possible investigation.

SB227,6,25 2. A case of possible unprofessional conduct by the health care professional has been opened for investigation.

SB227,7,2 3. A case of possible unprofessional conduct by the health care professional is closed after an investigation.

SB227,7,5 (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.

SB227,7,9 (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:

SB227,7,11 1. Provide the patient or client with a copy of each notice made under par. (b) 2. and 3. related to that case.

SB227,7,13 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.

SB227,7,15 (e) Failure to provide a notice under this subsection is not grounds for appeal or dismissal.

SB227,7,19 (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:

SB227,7,21 1. Each hospital where the health care professional has hospital staff privileges.

SB227,7,23 2. Each defined network plan, as defined in s. 609.01 (1b), for which the health care professional is a participating provider.

SB227,8,3 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.

SB227,8,5 (b) If requested by the department, a health care professional shall provide information necessary for the department to comply with this subsection.

SB227,8,7 (6) Opportunity for patients and clients to confer concerning discipline. (a) In this subsection, "patient" means any of the following:

SB227,8,10 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.

SB227,8,12 2. A parent, guardian, or legal custodian of a patient or client specified in subd. 1., if the patient or client is a child.

SB227,8,16 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.