June 3, 2010 

2009 WISCONSIN ACT 382: INCREASED OVERSIGHT AND REGULATION BY THE MEDICAL EXAMINING BOARD  

On May 18, 2010, Wisconsin Governor Jim Doyle signed Assembly Bill 877 into law as 2009 Wisconsin Act 382 (the "Act").  The new law took effect on June 2, 2010 and makes significant changes to the Medical Examining Board's ("MEB") regulation of physicians.  These changes are codified in Chapter 448 of the Wisconsin Statutes.

The most vital change under the recently enacted law is the new physician "peer reporting requirement."  Section 5 of the Act, codified at Wis. Stat. § 448.115, now requires a physician to promptly report, in writing, to the MEB when he or she has reason to believe that any one of the following four circumstances exist regarding another physician:

To encourage reporting and also protect reporting physicians, the new law prohibits the reporting physician from being held civilly or criminally liable or be found guilty of unprofessional conduct for reporting another physician.

Under the new law, the failure of a physician to comply with his or her duty to report another physician is now considered unprofessional conduct.  Specifically, Section 1 of the Act, codified at Wis. Stat. § 448.015(4), amends the definition of "unprofessional conduct" and subjects the non-reporting physician to disciplinary action for unprofessional conduct when he or she does not promptly report to the MEB.  

The intent of the new law is to protect the public from physicians who may pose a threat to their patients.  Because the law applies to all licensed physicians without exclusion, Dr. Sujatha Kailas, Chair of the MEB, has already notified Wisconsin physicians of the new law and the potential conflict that the new law may create for some physicians, particularly those engaged in medical management/peer review, as well as those physicians treating other physicians for psychiatric and substance abuse problems.  Dr. Kailas has indicated that complete guidance will be forthcoming on these issues.  

Clearly, the new law will have a significant impact on how physicians, hospitals and clinics deal with physician conduct.  Wisconsin law is now regulating behavior that until today was, for the most part, policed by the medical profession itself.  The new mandatory reporting requirement will challenge the current culture of physician reporting and create new challenges for hospital medical staff and physician leaders.  

In addition to the new reporting requirement, the new law also provides the MEB with broader discretion to issue orders of summary suspension of the licenses of physicians, physician assistants, perfusionists and the certificates of respiratory care practitioners.   Under the law, the MEB may suspend a license, certificate, or other permit if the MEB has probable cause to believe that a credential holder has violated the law and that suspending the credential is necessary to protect the public health, safety, or welfare.  The summary suspension begins when the credential holder is served with notice of the summary suspension.  Section 3 of the Act, codified at Wis. Stat. § 448.02(4), clarifies the procedure for issuing an order of summary suspension and removes the thirty (30) day time limitation on the issuance of a summary suspension and allows the suspension to remain in effect until the effective date of a final decision and order, or until the order of summary suspension is discontinued by the MEB, following a hearing to show cause.  The license or certificate holder has the right to request a hearing to show why the summary suspension should not be continued and the MEB must notify the license or certificate holder of that right.  If a hearing to show cause is requested, it must be scheduled within twenty (20) days of receipt by the MEB of the request. 

The Act made two additional changes to Chapter 448.  First, Wis. Stat. § 448.04(1)(c) removes the prohibition on prescribing narcotics by physicians holding a temporary education permit to practice medicine and surgery.  Second, Wis. Stat. § 448.13(1)(a)2 amends the existing continuing education requirements, which now requires a physician to not only submit proof of continuing education, but also, "professional development, and maintenance of certification or performance improvement or continuing medical education programs or courses of study required by the board by rule under s. 448.40(1)."  The MEB is further charged with promulgating rules requiring the completion of continuing education, professional development, and maintenance of certification or performance improvement or continuing medical education programs.

The full text of the Act is available at http://www.legis.state.wi.us/2009/data/acts/09Act382.pdf.

If you have any questions regarding the heightened requirements under Chapter 448, please contact your regular Hall Render attorney, Katherine A. Kuchan or Robin M. Sheridan via e-mail at kkuchan@hallrender.com, rsheridan@hallrender.com or by telephone at 414-721-0442.