SB139: Bill Text

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:

SB139,5,20 146.365 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.

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 Section 4 . 440.037 of the statutes is created to read:

SB139,6,3 440.037 Duties of department regarding health care professional disciplinary process. (1) Definitions. In this section:

SB139,6,4 (a) "Health care credentialing authority" means the:

SB139,6,5 1. Board of nursing.

SB139,6,6 2. Chiropractic examining board.

SB139,6,7 3. Dentistry examining board.

SB139,6,8 4. Dietitians affiliated credentialing board.

SB139,6,9 5. Hearing and speech examining board.

SB139,6,11 6. Examining board of social workers, marriage and family therapists and professional counselors.

SB139,6,12 7. Medical examining board.

SB139,6,13 8. Optometry examining board.

SB139,6,14 9. Pharmacy examining board.

SB139,6,15 10. Physical therapists affiliated credentialing board.

SB139,6,16 12. Psychology examining board.

SB139,6,17 13. Podiatrists affiliated credentialing board.

SB139,6,18 (b) "Health care professional" means:

SB139,6,20 1. An individual who is licensed or certified by a health care credentialing authority.

SB139,6,21 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 (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.

Note: Generally reflects current practice of DORL.

SB139,7,16 (3) Identification of health care professionals who may warrant evaluation. The department shall 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 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.

SB139,8,4 (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.

SB139,8,6 (b) The department shall notify a health care professional in writing within 30 days after any of the following:

SB139,8,8 1. A case of possible unprofessional conduct by the health care professional is closed following screening for a possible investigation.

SB139,8,10 2. A case of possible unprofessional conduct by the health care professional has been opened for investigation.

SB139,8,12 3. A case of possible unprofessional conduct by the health care professional is closed after an investigation.

SB139,8,15 (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.

SB139,8,19 (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:

SB139,8,21 1. Provide the patient or client with a copy of each notice made under par. (b) 2. and 3. related to that case.

SB139,8,23 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.

SB139,9,2 (e) Failure to provide a notice under this subsection is not grounds for appeal or 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.

The requirement of par. (c) is new and assures that a person who has made the effort to request an investigation for possible unprofessional conduct is given the same notice that the health care professional receives regarding the status of the early stages of the process.

The requirement of par. (d) is new. It recognizes that patients or clients are often interested in the early stages of a disciplinary case. If a case proceeds beyond the investigation stage, the patient or client and, in some cases, the family of the patient or client and others, will be given the opportunity to confer with DORL regarding the disposition of the case. See sub. (6) below.

SB139,9,6 (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:

SB139,9,8 1. Each hospital where the health care professional has hospital staff privileges.

SB139,9,10 2. Each managed care plan, as defined in s. 609.01 (3c), for which the health care professional is a participating provider.

SB139,9,13 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.

SB139,9,15 (b) If requested by the department, a health care professional shall provide information necessary for the department to comply with this subsection.

Note: New requirement. Because many health care professionals have multiple places of practice or employment, notifying all places of a health care professional's practice or employment will serve to alert them of the pending disciplinary action and allow them to determine if any action on their part might be desirable.

Note that reference to "formal complaint" in the provision refers to the complaint that is filed after a finding that there is probable cause to believe that the health care professional is guilty of unprofessional conduct. See, generally, ss. RL 2.06 and 2.08, Wis. Adm. Code.

SB139,10,2 (6) Opportunity for patients and clients to confer concerning discipline. (a) In this subsection "patient" means any of the following:

SB139,10,5 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.

SB139,10,7 2. A parent, guardian, or legal custodian of a patient or client specified in subd. 1., if the patient or client is a child.

SB139,10,11 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.

SB139,10,12 4. If a patient or client specified in subd. 1. is deceased, any of the following:

SB139,10,14 a. The spouse or a child, sibling, parent, or legal guardian of the deceased patient or client.

SB139,10,15 b. A person who resided with the deceased patient or client.

SB139,10,17 5. A guardian, appointed under ch. 880, of a patient or client specified in subd. 1., if the patient or client has been determined to be incompetent under ch. 880.

SB139,11,6 (b) Following an investigation of possible unprofessional conduct by a health care professional and before disciplinary action may be negotiated or imposed against the health care professional, a patient shall be provided an opportunity to confer with the department's prosecuting attorney concerning the disposition of the case and the economic, physical, and psychological effect on the patient of the unprofessional conduct. A prosecuting attorney may confer with a patient under this paragraph in person or by telephone or, if the patient agrees to the method, by any other method. The duty to confer under this paragraph does not limit the authority or obligation of the prosecuting attorney to exercise his or her discretion concerning the handling of a case of unprofessional conduct against the health care provider. Failure to provide an opportunity to confer under this paragraph is not grounds for appeal or dismissal of a disciplinary case against a health care professional.

Note: New requirement. The definition of "patient" is based on the definition of "victim" currently found in s. 950.02 (4), stats., which defines the term for purposes of the statutory chapter on rights of victims of crimes. Providing opportunity for involvement in the health care professional disciplinary process will enhance the public's understanding of and trust in that process. Further, the prospect of additional public scrutiny may well accelerate the disciplinary process, rather than delay it. While a patient's recommendations as to disposition are not determinative, the opportunity to be heard and considered is appropriate for a patient adversely affected by the unprofessional conduct that is a subject of the disciplinary proceeding.

SB139,11,15 (7) Establishment of disciplinary procedure time guidelines. The department shall establish guidelines for the timely completion of each stage of the health care professional disciplinary process. Notwithstanding s. 227.10 (1), the guidelines need not be promulgated as rules under ch. 227. The guidelines may account for the type and complexity of the case. The guidelines shall promote the fair and efficient processing of cases of unprofessional conduct. The guidelines shall be for administrative purposes and shall permit the department to monitor the progress of cases and the performance of personnel handling the cases. Failure to comply with the guidelines is not grounds for appeal or dismissal.

Note: Reflects current practice of DORL. See also Section 15 of the bill and the note thereto.

SB139,12,9 (8) Panels of experts; alternative health care practitioners. If the department establishes a panel of health care experts to be used on a consulting basis by a health care credentialing authority, the department shall attempt to include a health care professional who practices alternative forms of health care on the panel. A health care professional who practices alternative health care and who participates on a panel shall be of the same profession as the professionals regulated by the health care credentialing authority utilizing the panel. The health care professional who practices alternative health care shall be available to assist in evaluating complaints filed with the department or health care credentialing authority against a health care professional who is alleged to have practiced health care in an unprofessional or negligent manner through the use of alternative forms of health care, the referral to an alternative health care provider, or the prescribing of alternative medical treatment.

Note: Provides for the inclusion of health care professionals who practice alternative forms of health care on panels of expert consultants that may be assembled by the department of regulation and licensing in reviewing complaints against health care professionals. Health care professionals practicing alternative forms of health care who are included on these panels must be of the same profession as the professionals regulated by the health care credentialing authority with which the complaint is filed. The purpose of including health care professionals who practice alternative forms of health care is to assist in evaluating complaints against a health care professional that may involve practice of health care in an unprofessional or negligent manner through the use of alternative forms of health care, referral to an alternative health care provider, or prescribing alternative medical treatment.

SB139,12,12 (9) Advice of credentialing authorities. In carrying out its duties under this section, the department shall seek the advice of health care credentialing authorities.

SB139, s. 5 Section 5. 448.02 (3) (c) of the statutes is amended to read:

SB139,13,7 448.02 (3) (c) Subject to par. (cm), after a disciplinary hearing, the board may, when it determines that a panel established under s. 655.02, 1983 stats., has unanimously found or a court has found that a person has been negligent in treating a patient or when it finds a person guilty of unprofessional conduct or negligence in treatment, do one or more of the following: warn or reprimand that person, assess a forfeiture against that person under par. (d), or limit, suspend or revoke any license, certificate or limited permit granted by the board to that person. The board may condition the removal of limitations on a license, certificate or limited permit or the restoration of a suspended or revoked license, certificate or limited permit upon obtaining minimum results specified by the board on one or more physical, mental or professional competency examinations if the board believes that obtaining the minimum results is related to correcting one or more of the bases upon which the limitation, suspension or revocation was imposed.

SB139, s. 6 Section 6. 448.02 (3) (d) of the statutes is created to read:

SB139,13,11 448.02 (3) (d) The board may, except in cases where the person is found guilty of negligence in treatment, assess a forfeiture of not more than $1,000 for each violation against a person who is found guilty of unprofessional conduct.

Note: Authorizes the board to assess a forfeiture, of not more than $1,000 for each violation, against a credential holder who is found guilty of unprofessional conduct, not including cases of negligence in treatment.

SB139, s. 7 Section 7. 448.02 (4) and (9) (intro.) of the statutes are amended to read:

SB139,14,8 448.02 (4) Suspension pending hearing. The board may summarily suspend or limit any license, certificate or limited permit granted by the board for a period not to exceed 30 days pending hearing, when the board has in its possession evidence establishing probable cause to believe that the holder of the license, certificate or limited permit has violated the provisions of this subchapter and that it is necessary to suspend or limit the license, certificate or limited permit immediately to protect the public health, safety or welfare. The holder of the license, certificate or limited permit shall be granted an opportunity to be heard during the determination of probable cause. The board may designate any of its officers to exercise the authority granted by this subsection to suspend or limit summarily a license, certificate or limited permit, but such suspension or limitation shall be for a period of time not to exceed 72 hours. If a license, certificate or limited permit has been summarily suspended or limited by the board or any of its officers, the board may, while the hearing is in progress, extend the initial 30-day period of suspension or limitation for an additional 30 days. If the holder of the license, certificate or limited permit has caused a delay in the hearing process, the board may subsequently suspend or limit the license, certificate or limited permit from the time the hearing is commenced until a final decision is issued or may delegate such authority to the hearing examiner.

Note: Authorizes the board to summarily limit the credential of a credential holder when the board has probable cause to believe that the credential holder has violated a provision of subch. II of ch. 448, stats., and that it is necessary to immediately limit the credential to protect the public health, safety and welfare.

SB139,14,14 (9) Judicial review. (intro.) No injunction, temporary injunction, stay, restraining order or other order may be issued by a court in any proceeding for review that suspends or stays an order of the board to discipline a physician under sub. (3) (c) or to suspend or limit a physician's license under sub. (4), except upon application to the court and a determination by the court that all of the following conditions are met:

SB139, s. 8 Section 8. 979.01 (1) of the statutes is renumbered 979.01 (1) (intro.) and amended to read:

SB139,14,22 979.01 (1) (intro.) All physicians, authorities of hospitals, sanatoriums, public and private institutions, convalescent homes, authorities of any institution of a like nature, and other persons having knowledge of the death of any person who has died under any of the following circumstances, shall immediately report the death to the sheriff, police chief, medical examiner or coroner of the county where the death took place.:

Note: This Section, together with Sections 9 and 10, clarify that a death under any of the following circumstances must be reported:

"(a) All deaths in which there are unexplained, unusual, or suspicious circumstances.

(b) All homicides.

(c) All suicides.

(d) All deaths following an abortion.

(e) All deaths due to poisoning, whether homicidal, suicidal, or accidental.

(f) All deaths following accidents, whether the injury is or is not the primary cause of death.

(g) When there was no physician, or accredited practitioner of a bona fide religious denomination relying upon prayer or spiritual means for healing in attendance within 30 days preceding death.

(h) When a physician refuses to sign the death certificate.

(i) When, after reasonable efforts, a physician cannot be obtained to sign the medical certification as required under s. 69.18 (2) (b) or (c) within six days after the pronouncement of death or sooner under circumstances which the coroner or medical examiner determines to be an emergency.".

SB139, s. 9 Section 9 . 979.01 (1g) (intro.) of the statutes is renumbered 979.01 (1g) and amended to read: