LRB-2897/2
MED:cjs:jm
2013 - 2014 LEGISLATURE
February 4, 2014 - Introduced by Representatives Marklein, LeMahieu, Ballweg,
Bewley, Brooks, Jacque, Kapenga, Knodl, Knudson, T. Larson, Nygren,
Ringhand, Severson, Doyle and Strachota, cosponsored by Senators
Vukmir, Grothman and Schultz. Referred to Committee on Health.
AB728,1,6
1An Act to repeal 50.36 (3g) and 50.36 (6m) (a) 1.;
to amend 50.35, 50.36 (1),
250.36 (2) (a), 50.36 (2) (b), 50.36 (3m), 50.36 (4), 50.36 (6m) (a) (intro.), 50.36
3(6m) (a) 2., 50.36 (6m) (a) 3., 50.36 (6m) (b), 50.37 (intro.), 50.37 (4), 50.39 (1)
4and 323.19 (1); and
to create 50.33 (1c), 50.33 (3), 50.36 (1m), 50.36 (3) (am) and
550.36 (3L) of the statutes;
relating to: regulation of hospitals, granting
6rule-making authority, and requiring the exercise of rule-making authority.
Analysis by the Legislative Reference Bureau
Rules and standards that apply to hospitals
Under current state law, the Department of Health Services (DHS) must
promulgate, adopt, amend, and enforce rules and standards for the construction,
maintenance, and operation of hospitals that are deemed necessary to provide safe
and adequate care and treatment of the patients in hospitals and to protect the
health and safety of hospital patients and employees. On receipt of an application,
DHS must issue a certificate of approval to maintain a hospital if the applicant and
hospital facilities meet the requirements established by DHS.
Under current federal law, a hospital participating in the federal Medicare
program must satisfy certain requirements, including requirements set out in
federal regulations promulgated by the federal Centers for Medicare and Medicaid
Services in the United States Department of Health and Human Services (CMS).
These federal regulations are known as the federal conditions for Medicare
participation for hospitals (COP). Certain hospitals designated as "critical access
hospitals" pursuant to federal law operate under a different COP.
This bill generally provides that, effective July 1, 2016:
1. DHS must use and enforce the COPs as the minimum standards that apply
to hospitals. DHS must interpret the COPs using guidelines adopted by CMS, unless
DHS determines that a different interpretation is reasonably necessary to protect
public health and safety.
2. DHS may not, except as described below, enforce certain administrative
rules pertaining to hospitals that were promulgated by DHS that are currently in
effect, including rules pertaining to management of hospitals, hospital medical staff,
and required services in hospitals.
3. DHS must, within the scope of its rulemaking authority, promulgate rules
to repeal and recreate its current rules pertaining to hospitals. Upon promulgation
of a rule to repeal and recreate its current rules pertaining to hospitals, the
prohibition against enforcement of DHS's rules no longer applies.
The bill also eliminates a restriction in current law providing that nothing in
DHS's rules or standards for hospitals may pertain to a person licensed to practice
medicine and surgery or dentistry.
Other changes to laws regulating hospitals
The bill makes other changes to the laws regulating hospitals. Significant
changes to current law in the bill include the following:
1. Current law provides that the building codes and construction standards of
the Department of Safety and Professional Services (DSPS) apply to all hospitals.
Current law also allows DHS to promulgate and adopt rules and standards for the
construction of hospitals, but provides that DHS may adopt additional construction
codes and standards for hospitals only if they are not lower than the requirements
of DSPS.
The bill retains the provision providing that the building codes and
construction standards of DSPS apply to all hospitals, but provides that they apply
only to the extent that they are not incompatible with any building codes or
construction standards required by the COPs. The bill retains the authority for DHS
to promulgate and adopt rules and standards for the construction of hospitals, but
eliminates the specific restriction on that authority described above.
2. Under current law, DHS must conduct plan reviews of all capital
construction and remodeling projects of hospitals to ensure that the plans comply
with building code requirements in the laws administered by DSPS and with
physical plant requirements for hospitals. Also under current law, DHS must
promulgate rules that establish a fee schedule for its services in conducting the plan
reviews described above. The schedule may not, however, set the fees at levels that
are higher than certain specified amounts.
This bill retains the requirement that DHS conduct plan reviews of all capital
construction and remodeling projects of hospitals and retains the authority of DHS
to promulgate rules establishing a fee schedule for the plan reviews, but eliminates
the restrictions on amounts in the fee schedule.
3. Current DHS rules require the governing body of a hospital to establish a
policy that requires every patient to be under the care of a licensed physician, dentist,
or podiatrist. The policy must, under those rules, provide that a person may be
admitted to a hospital only on the recommendation of a physician, dentist, or
podiatrist, with a physician designated to be responsible for the medical aspects of
care.
Also, under current law, a hospital that admits patients for treatment of mental
illness may grant to a psychologist who is listed or eligible to be listed in the National
Register of Health Services Providers in Psychology or who is certified by the
American Board of Professional Psychology an opportunity to obtain hospital staff
privileges to admit, treat, and discharge patients. If a hospital grants a psychologist
hospital staff privileges, the psychologist or the hospital must, prior to or at the time
of hospital admission of a patient, identify an appropriate physician with admitting
privileges at the hospital who shall be responsible for the medical evaluation and
medical management of the patient for the duration of his or her hospitalization.
The bill provides that a hospital may afford any practitioner the opportunity to
be a member of the hospital staff and obtain hospital staff privileges if the
membership or privileges are not otherwise prohibited and the membership or
privileges are consistent with the practitioner's scope of practice.
The bill repeals the provisions in current law that specifically address the
granting of hospital staff privileges to psychologists.
4. Under current law, the secretary of health services or his or her designee
(secretary) may grant a variance to a statute affecting hospitals or a rule of DHS
affecting hospitals if all of the following apply: 1) the secretary determines that a
disaster, as defined under the emergency management law, has occurred; 2) a
hospital has requested the variance; and 3) the secretary determines that the
variance is necessary to protect the public health, safety, or welfare. Such a variance
must be for a stated term not to exceed 90 days, except that the secretary may extend
the variance upon request by the hospital if the secretary determines that an
extension is necessary to protect the public health, safety, or welfare.
This bill makes the following changes with respect to variances affecting
hospitals: 1) eliminates the requirement that, in order to grant a variance, the
secretary determine that a disaster has occurred; 2) eliminates the requirement that
a variance be for a limited term unless extended; 3) also allows a variance to be
granted for the purpose of supporting the efficient and economic operation of a
hospital; 4) expands the scope of the secretary's authority to any other requirement
for hospitals, such as the COP; and 5) allows the secretary to grant a waiver, in
addition to granting a variance, from the requirements for hospitals.
5. The bill provides that a hospital accredited by an approved national
accrediting organization is exempt from routine inspections and investigations to
determine compliance with, and is considered to be in compliance with, the
requirements for hospitals. The bill provides, however, that this exemption does not
extend to plan reviews conducted by DHS of capital construction and remodeling
projects of hospitals, and provides that DHS may inspect an accredited hospital to
investigate a complaint or comply with a request by CMS, including a request to
validate the findings of the accrediting organization.
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:
AB728,1
1Section
1. 50.33 (1c) of the statutes is created to read:
AB728,4,42
50.33
(1c) "Conditions for Medicare participation for hospitals" means the
3conditions of participation specified under
42 CFR 482 or, with respect to critical
4access hospitals,
42 CFR 485.
AB728,2
5Section
2. 50.33 (3) of the statutes is created to read:
AB728,4,86
50.33
(3) "Requirements for hospitals" means all of the rules, standards, and
7requirements described in or promulgated under ss. 50.32 to 50.39 that apply to
8hospitals, including the standards described under s. 50.36 (1).
AB728,3
9Section
3. 50.35 of the statutes is amended to read:
AB728,5,13
1050.35 Application and approval. Application for approval to maintain a
11hospital shall be made to the department on forms provided by the department. On
12receipt of an application, the department shall, except as provided in s. 50.498, issue
13a certificate of approval if the applicant and hospital facilities meet the requirements
14established by the department for hospitals. The department shall issue a single
15certificate of approval for the University of Wisconsin Hospitals and Clinics
16Authority that applies to all of the Authority's inpatient and outpatient hospital
17facilities that meet the requirements
established by the department for hospitals 18and for which the Authority requests approval. For a free-standing pediatric
19teaching hospital, the department shall issue a single certificate of approval that
1applies to all of the hospital's inpatient and outpatient hospital facilities that meet
2the requirements
established by the department for hospitals and for which the
3hospital requests approval. Except as provided in s. 50.498, this approval shall be
4in effect until, for just cause and in the manner herein prescribed, it is suspended or
5revoked. The certificate of approval may be issued only for the premises and persons
6or governmental unit named in the application and is not transferable or assignable.
7The department shall withhold, suspend
, or revoke approval for a failure to comply
8with s. 165.40 (6) (a) 1. or 2., but, except as provided in s. 50.498, otherwise may not
9withhold, suspend
, or revoke approval unless for a substantial failure to comply with
10ss. 50.32 to 50.39 or the rules and standards adopted by the department the
11requirements for hospitals after giving a reasonable notice, a fair hearing
, and a
12reasonable opportunity to comply. Failure by a hospital to comply with s. 50.36 (3m)
13shall be considered to be a substantial failure to comply under this section.
AB728,4
14Section
4
. 50.36 (1) of the statutes is amended to read:
AB728,6,1115
50.36
(1) Beginning on July 1, 2016, except as otherwise provided under ss.
1650.32 to 50.39, the department shall use and enforce the conditions for Medicare
17participation for hospitals as the minimum standards that apply to hospitals. The
18department shall interpret the conditions for Medicare participation for hospitals
19using guidelines adopted by the federal centers for medicare and medicaid services,
20unless the department determines that a different interpretation is reasonably
21necessary to protect public health and safety. The department
shall may 22promulgate, adopt, amend
, and enforce
such additional rules and standards
for
23hospitals for the construction, maintenance
, and operation of
the hospitals
deemed 24that the department determines are necessary to provide safe and adequate care and
25treatment of
the hospital patients
in the hospitals and to protect the health and
1safety of the patients and employees
; and nothing contained herein shall pertain to
2a person licensed to practice medicine and surgery or dentistry. The building codes
3and construction standards of the department of safety and professional services
4shall apply to all hospitals
and the department may adopt additional construction
5codes and standards for hospitals, provided to the extent that they are not
lower than
6the requirements of the department of safety and professional services incompatible
7with any building codes or construction standards required by the conditions for
8Medicare participation for hospitals. Except for the construction codes and
9standards of the department of safety and professional services and except as
10provided in s. 50.39 (3), the department shall be the sole agency to adopt and enforce
11rules and standards pertaining to hospitals.
AB728,5
12Section
5. 50.36 (1m) of the statutes is created to read:
AB728,6,1413
50.36
(1m) (a) Notwithstanding sub. (1) and except as provided pars. (b) and
14(c), all of the following apply:
AB728,6,1715
1. Beginning on July 1, 2016, the department may not enforce any of the rules
16contained in s. DHS 124.40 or subch. II, III, or IV of ch. DHS 124, Wis. Adm. Code,
17in effect on the effective date of this subdivision .... [LRB inserts date].
AB728,6,2018
2. The department shall, within the scope of the department's rule-making
19authority under sub. (1), promulgate rules to repeal and recreate ch. DHS 124, Wis.
20Adm. Code.
AB728,6,2121
(b) Paragraph (a) 1. does not apply to s. DHS 124.24 (3), Wis. Adm. Code.
AB728,6,2422
(c) Paragraph (a) does not apply beginning on the date that a permanent rule
23promulgated under ch. 227 that repeals and recreates ch. DHS 124, Wis. Adm. Code,
24takes effect as provided in s. 227.22.
AB728,6
25Section
6. 50.36 (2) (a) of the statutes is amended to read:
AB728,7,5
150.36
(2) (a)
The Notwithstanding sub. (3L), the department shall conduct plan
2reviews of all capital construction and remodeling projects of hospitals to ensure that
3the plans comply with
any applicable building code requirements under ch. 101 and
4with
any physical plant requirements under this chapter or under rules promulgated
5under this chapter.
AB728,7
6Section
7. 50.36 (2) (b) of the statutes is amended to read:
AB728,7,127
50.36
(2) (b) The department shall promulgate rules that establish a fee
8schedule for its services in conducting the plan reviews under par. (a).
The schedule
9established under these rules shall set fees for hospital plan reviews in amounts that
10are less than the sum of the amounts required on September 30, 1995, for fees under
11this subsection and for fees for examination of hospital plans under s. 101.19 (1) (a),
121993 stats.
AB728,8
13Section
8. 50.36 (3) (am) of the statutes is created to read:
AB728,7,1714
50.36
(3) (am) A hospital may grant any practitioner the opportunity to be a
15member of the hospital staff and obtain hospital staff privileges if the membership
16or privileges are not prohibited under sub. (1) and are consistent with the
17practitioner's scope of practice.
AB728,9
18Section
9. 50.36 (3g) of the statutes is repealed.