What Does Wisconsin Medical Examining Board’s New Chaperone Rule Mean for Hospitals?  Not Much.

The new rules about chaperones for physicians in private practice (not hospitals or hospital-employed physicians) go into effect October 1, 2023. The rule is promulgated by the Medical Examining Board (MEB), which does not have jurisdiction over hospitals – only doctors. However, the Medical Examining Board may use hospital chaperone policies (if they exist – they are not required) to evaluate physicians who come before the MEB due to complaints of inappropriate conduct with patients. The rule has changed significantly since its initial draft stage, so providers should be careful in relying on any advice, interpretation or guidance that was issued in connection with those early drafts. For example, the rule does not actually require anyone to have chaperones in the room during physician exams. Unless, of course, there is a policy requiring it. Physicians in private practice must have policies or procedures on the use of chaperones and must make those policies or procedures accessible to patients.

The use of third parties in the room (“chaperones”, or “observers” if chosen by the patient) for clinical examinations of sensitive areas of the body has become an increased focus for legislation and guidance. For example, the American Medical Association (AMA) code of ethics states that physicians should adopt accessible policies allowing their patients to request the presence of chaperones. Similar recommendations have been issued by the American College of Obstetrics and Gynecology and the American Academy of Pediatrics.

The early drafts of Wisconsin’s rule did require chaperones and also used language that arguably extended to hospitals. There was significant and effective advocacy from trade associations such as the Wisconsin Hospital Association, Wisconsin Surgery Center Association, and Wisconsin Medical Society which resulted in significant changes to the rule, in part because of the staffing resources that would have been required (not an easy task with the current staffing crunch and current hospital resources).

The MEB ultimately promulgated a rule that is transparent regarding the MEB’s limitations (i.e., the MEB may not impose requirements on hospitals). However, there is some language left in the current version of the rule that has proved somewhat confusing to institutional providers such as hospitals, essentially stating that if a hospital or other physician employer does have a policy, the MEB can consider that policy in the event of discipline. One might speculate that if the policy were simply not to require chaperones, that fact could be helpful to physicians being investigated for inappropriate patient contact. The countervailing view is that there should be some ability for patients (or physicians) to ask for a chaperone if they are uncomfortable without one.

In the end, whether to have a policy and the content of any such policy for a hospital or other institutional employer is completely discretionary. The right way to handle this issue will vary between institutions. Some hospitals already had a chaperone policy due to previous experience with concerns about such examinations. Those hospitals – and others – are absolutely free to implement such a policy but are not required to do so. If the hospital or other institutional employer of physicians does have such a policy, it need not be provided to patients.

For physicians in private practice, Wisconsin’s chaperone rule expands the MEB’s unprofessional conduct rules with regard to clinical examinations that expose a patient’s genitals, breasts, or rectal area. Under this rule, physicians who are self-employed or who work in practice settings that do not involve hospitals or employers, must establish and comply with policies or procedures for the use of chaperones and observers in clinical examinations. These policies or procedures, or accurate summaries, must be made available and accessible to all patients who are likely to receive non-emergency clinical examinations of their genitals, breasts, or rectal area. The rule does not specifically prescribe the content of these policies or procedures nor does the rule require that a physician allow the use of chaperones or observers.

If you are seeking further guidance or if you have any specific inquiries, please contact your local Quarles attorney, or:

• Sarah Coyne: (608) 283-2435 / sarah.coyne@quarles.com
• Mehak Qureshi: (608) 283-2655 / mehak.qureshi@quarles.com