Prior to July 1, 2023, the Wisconsin Medical Examining Board (MEB) required self-employed physicians to have chaperone policies for sensitive exams, and make them available to patients.

Recently enacted changes to the rule mean better clarity for both patients and physicians regarding the physician’s policies for sensitive exams.

A Two-year Process

The original rule mandated that a chaperone be present when doctors performed sensitive exams, except in limited circumstances.

In 2021, the MEB proposed changes to the chaperone rule to promote use of chaperones, with the thought that it would reduce the number of complaints related to inappropriate sexual conduct.

The original proposed order outlined that, if inappropriate conduct occurred and a chaperone was not present, there would be an automatic presumption that the physician was guilty and would subsequently need to demonstrate their innocence.

After more than two years of input from physicians, other stakeholders, and two economic impact analyses, the MEB offered a less demanding rule than originally proposed. The high cost of implementing this rule and input from physicians and other stakeholders caused the MEB to amend the proposal.

The economic impact analyses had determined that it would have cost healthcare entities approximately $15 million in new costs to comply with the mandatory chaperone rule. State law requires legislative review and oversight of any administrative rule that costs more than $10 million.

In addition, physicians with small practices were particularly concerned that, without such modifications, they would have to forgo certain medical exams or face high costs to hire and train staff.

New Chaperone Rule Requirements

The final rule regarding the use of chaperones and other observers in sensitive exams in Wisconsin went into effect on Oct. 1, 2023.

This rule primarily affects physicians in private practice, as the MEB clarified that they are not imposing rules on entities that the board does not oversee (i.e., hospitals and other institutional employers of physicians).

Instead, the MEB states that physicians who practice in a hospital or work for any other employer comply with the rules established by their hospital or employer regarding chaperones and other observers in exams.

For self-employed physicians or physicians who work in private practice, the new rule requires that they create written policies for the use of chaperones or other observers when examinations of the breasts, genitals, or rectal area are performed or in other procedures when those areas might be exposed.

The MEB defines a chaperone as an individual whom a physician requests to be present during a clinical examination and an observer as an individual chosen by the patient to be present during a sensitive exam.

The MEB requires that a copy of any rules or procedures relating to a physician's use of chaperones must be made available and accessible to all patients who are likely to receive a non-emergency examination of the breasts, genitals, or rectal area.

The new rule does not require the use of chaperones or other observers. Instead, the rule ultimately aims to give patients and physicians clarity regarding any existing policies relating to sensitive exams. Therefore, a physician could have a policy stating that “we do not provide chaperones,” and if they make this policy readily available, they will comply with the new rule.

In this way, the chaperone rule in its final form looks very different from the original 2021 proposal.

Chaperone Rules Across the U.S.

Many states in recent years reevaluated their chaperone rules. Several states heeded the advice of the American Medical Association and the American College of Obstetricians and Gynecologists, who have been pushing for the usage of chaperones during sensitive exams.

For example, the State Medical Board of Oregon​ as of July 1, 2023, requires that all licensees must offer to make a trained chaperone available who can be present for sensitive exams and requires that the chaperone is not a personal friend or relative of the patient. The chaperone must hold an active Oregon license and have been trained in a course for medical chaperones.

Additionally, the Georgia Composite Medical Board in 2016 included in the definitions of misconduct that it was a violation to conduct a physical examination of the breast and/or genitalia of a patient of the opposite sex without a chaperone present.

However, most states in the Midwest have not taken this approach. In the analysis of the Final Rule in Wisconsin, the MEB outlines the requirements of several surrounding states, including Illinois, Iowa, Michigan, and Minnesota, none of which make chaperones mandatory for sensitive exams.

Conclusion: Key Take-aways for Wisconsin Health Law Attorneys

With the considerable differences between the original proposed rule and the final rule on chaperones now in effect, Wisconsin physicians may be confused about the scope of the new requirements. Key differences in chaperone laws in other states often further fuel the confusion. Attorneys can play a key role in helping physicians understand what is and is not required.

Although very cursory policies will technically comply, the new rule opens the door for attorneys to provide more substantive guidance as to best practices and what a robust chaperone policy should look like – whether a client decides to offer chaperones or not.

Of course, attorneys can also assist clients in weighing the potential benefits and burdens of using chaperones and exploring multiple ways to mitigate risk to both patients and physicians in the context of sensitive exams.

This article was originally published on the State Bar of Wisconsin’s Health Law Blog. Visit the State Bar sections or the Health Law Section webpages to learn more about the benefits of section membership.