The state of Wisconsin’s Medical Examining Board (MEB) will likely move in a new direction on a proposed administrative rule designed to promote the use of chaperones for physicians conducting sensitive physical exams. The change in direction follows more than a year’s input from physicians around the state and two separate Economic Impact Assessment (EIA) periods on two different versions of the proposal.
Results of the second EIA period showed that physician offices, clinics and hospitals would face an estimated $75 million in training and compliance costs in just the first year under that version of the rule. Under state law, any proposed administrative rule that would cost more than $10 million in additional costs over two years requires the rule’s progress to be halted and instead submitted to the state legislature as potential legislation – a path the MEB does not appear to desire.
The Wisconsin Medical Society (WisMed) has been the lead force raising concerns about another part of the proposed rule: if a physician did not use a chaperone during an exam and an inappropriate touching/conduct complaint is subsequently filed, then the physician would have been presumed guilty and forced to prove their innocence. This change in “presumption” is the opposite of the current discipline procedure, fundamentally interfering with physicians’ rights. The new proposed language removes that presumption of guilt and instead aims at ensuring patients are aware of any office/clinic/hospital policy on chaperones. The new language includes:
Med 10.03 (2)(f)(4): A physician who practices in a hospital or works for any other employer shall comply with the rules established by their hospital or employer regarding chaperones or other observers in patient examinations. Physicians who are self-employed or in other practice settings that do not involve hospitals or employers shall establish written procedures for the use of chaperones or other observers in patient examinations and shall comply with these procedures once established. A physician shall make a copy of the rules and procedures regarding the physician’s use of chaperones or other observers available to patients and shall post their procedures or policy regarding chaperones or other observers in at least one location that is visible to all patients.
The MEB’s attorney explained that this language would not require a facility to have any specific chaperone policy – or even offer chaperones at all. For example, a facility could fulfil the rule’s requirements by posting “this facility does not offer chaperones as part of a patient visit” if that is the case. The attorney termed this version of the rule: "Have a policy. Follow the policy. Make the policy available."
The MEB plans to use this language as a starting point for discussion at its next scheduled meeting on August 17, 2022. During the June 20 meeting, Board Chair Sheldon Wasserman, MD, asked WisMed for initial thoughts on the new language. WisMed Chief Policy and Advocacy Officer Mark Grapentine replied that at first glance it was positive to see the guilt presumption provision removed, and he thanked the MEB for listening to physician feedback on that issue. Grapentine also emphasized WisMed members’ agreement with the MEB that inappropriate sexual conduct complaints should be thoroughly investigated, with wrongdoers severely disciplined following a finding of guilt.
Contact WisMed Chief Policy and Advocacy Officer Mark Grapentine, JD via email or message him in WisMed Mobile for more information.
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