The State of Wisconsin’s Medical Examining Board (MEB) has opened another Economic Impact Analysis (EIA) period for physicians to weigh in on the potential costs of a proposed administrative rule designed to promote the use of chaperones when performing genital, breast and rectal exams (or when those areas might be exposed during other procedures). The call for comments, including the language of the updated rule and the contact information for submitting comments, can be found here. The deadline to submit comments is June 13, 2022.
The EIA period is a required step whenever a state entity proposes an administrative rule – the assessment allows the body proposing the rule to better understand the fiscal ramifications of their proposal. Usually a cursory step, the initial EIA period for a previous version of the chaperone rule resulted in a finding that the state’s health care entities would face approximately $15 million in new costs the first year in order to properly comply with the rule. State law requires any administrative rule costing more than $10 million over two years to take a different approval path, involving legislative review and oversight. Seeking to avoid this fate, the MEB amended the proposal to its current form.
Under the updated rule language (see this April 21 Medigram story on the MEB’s work to amend the original version), the MEB is allowed to “make a rebuttable presumption in favor of any facts alleged in a complaint made under” an administrative code section related to sexual gratification unprofessional conduct. In order to avoid that presumption of guilt if a complaint is filed under this code section, physicians can show that a chaperone was used during the exam.
If the patient refuses a chaperone, the rule requires the patient to sign an informed consent document, and the medical record must detail how the patient was “adequately counseled” on the chaperone option and document the details of the counseling, decision, consent document, and detailed reasons.” If the patient refuses to sign an informed consent document after waiving the offer of a chaperone, the physician “may refuse to perform the examination. Physicians must document the details of the counseling, decision, and detailed reasons in the patient’s medical record.”
The Wisconsin Medical Society (WisMed) and other health care entities have raised concerns regarding the MEB’s intention to alter the usual presumption of innocence when a complaint is filed to a presumption of guilt, including that such a change may violate current state law. Concerns have also been raised about the cost of complying with the rule to avoid this new assumption of guilt, and how the new requirements could negatively impact already-stressed physician-patient interactions.
Once the current EIA period has expired, the Board will review comments and assess the potential costs. It will then decide whether to continue moving forward with the rule – if so, eventually a public hearing will be scheduled where physicians can share their opinions with the full MEB about the proposal.
Physicians using the WisMed Mobile App received an alert May 10 about the EIA period. Click here for information on how you can tap into this exclusive member benefit. Contact WisMed Chief Policy and Advocacy Officer Mark Grapentine, JD for more information.
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