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Wisconsin Intensifies Oversight of Medical Practice

Health Law Update Alyce C. Katayama

As of June 2, 2010, Wisconsin opens a new era in the state's regulation of physicians, joining 15 other states which mandate that physicians report their colleagues for incompetence, unprofessional conduct and/or impairment. The legislation was introduced by Representative Jon Richards and cosponsored by Senator Fred Risser at the request of the Medical Examining Board. It was reviewed by the General Counsel of the Department of Regulation and Licensing before its introduction in the legislature.

Specifically, 2009 Wisconsin Act 382 requires a physician to report another physician in writing to the Medical Examining Board ("MEB") whenever he has reason to believe that one of the following four circumstances exists:

  1. The other physician is engaging or has engaged in acts that constitute a pattern of unprofessional conduct.

  2. The other physician is engaging or has engaged in a single act that creates a immediate or continuing danger to one or more patients or to the public.
  3. The other physician is or may be medically incompetent.
  4. The other physician is or may be mentally or physically unable to safely engage in the practice of medicine or surgery.

Wis. Stat. § 448.115

The failure to report, as required by Section 448.115, has been added to the statutory definition of unprofessional
conduct under Wis. Stat. § 448.015(4)(c), meaning that a failure to make the newly required report could subject the
non-reporting physician to disciplinary measures for unprofessional conduct. Conversely, a physician who reports to the MEB in good faith pursuant to the new requirement, is immunized from civil or criminal liability and cannot be found guilty of unprofessional conduct for reporting.

The Act also modifies the MEB's authority with regard to summary suspension of the licenses of physicians, physician assistants and perfusionists, and the certificates of respiratory care practitioners. Under prior law, summary suspensions could generally not exceed 30 days pending a hearing. Now, a summary suspension will remain in effect until a final decision and order is made in the disciplinary proceeding against the license or certificate holder, 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 must be notified of that right. If the license or certificate holder requests a hearing, the hearing must be scheduled within 20 days of the MEB's receipt of that request. Allowing a summary suspension to continue until a final decision is rendered or the suspension is successfully challenged, brings the statute into line with the current administrative rule, Wis. Admin. Code RL 6.06, which had somehow extended the MEB's authority beyond the statute. Previously, the Board could designate any of its officers to exercise the authority to impose a summary suspension for up to 72 hours. Currently, imposing a summary suspension requires action by the Board Chair or Vice Chair and two other Board members designated by the Chair or Vice Chair. Wis. Stat. § 448.02(4)(a).

The Act makes two other changes. First, physicians holding a temporary educational permit ("TEP") to practice medicine and surgery now have the right not only to prescribe drugs but also to prescribe narcotics. TEPs are available to persons who have graduated from an approved medical school and completed 12 months of postgraduate training. TEP holders are typically unlicensed second-year residents, who work under TEPs until they receive their full license, midway through that year of training. Wis. Stat. § 448.04(1)(c).

Lastly, the requirement that physicians complete 30 hours of continuing medical education every two years has been modified as well. The statute now makes it clear that this requirement will also include any additional requirement to engage in "professional development and maintenance of certification or performance improvement or continuing medical education programs or courses of study required by the board by rule."

This change is designed to allow the MEB the flexibility to change, by rulemaking, the nature of the CME requirement and/or the number of CME credits currently required by the statute.

For more information on this new Wisconsin legislation, please contact Alyce Katayama at (414) 277-5823 / or your local Quarles & Brady attorney.