AB438: Bill Text

2019 - 2020 LEGISLATURE

2019 Assembly BILL 438

September 12, 2019 - Introduced by Representatives Stafsholt, Doyle, Magnafici, Horlacher, Anderson, Bowen, Dittrich, Felzkowski, Gundrum, Knodl, Kolste, Kurtz, Petryk, Spreitzer, C. Taylor, Tusler, VanderMeer and Vruwink, cosponsored by Senators Marklein, Ringhand, Testin, Darling, Jacque, Kooyenga, Nass and L. Taylor. Referred to Committee on Health.

AB438,1,11 An Act to amend 49.45 (9r) (a) 7. b., 146.81 (1) (dg), 146.997 (1) (d) 4., 154.01 (3), 155.01 (7), 252.14 (1) (ar) 4e., 440.03 (9) (a) (intro.), 440.03 (9) (a) 2., 440.03 (13) (b) (intro.), 440.15, 446.01 (1v) (d), 448.50 (3) and (3m), 448.51, 448.56 (2), 448.565, 448.57 (2) (intro.), (c), (d) and (e), (4) and (5), 448.956 (1m) and (4), 450.10 (3) (a) 5., 451.02 (1) and 462.04; to repeal and recreate 440.03 (13) (b) (intro.) and 440.15; and to create 14.88, 440.03 (11m) (c) 2m., 448.50 (1n) and (1o), subchapter IX of chapter 448 [precedes 448.985] and 448.986 of the statutes; relating to: ratification of the Physical Therapy Licensure Compact, extending the time limit for emergency rule procedures, providing an exemption from emergency rule procedures, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill ratifies and enters Wisconsin into the Physical Therapy Licensure Compact (compact), which provides for the ability of a physical therapist or physical therapist assistant licensed in one member state (licensee) to obtain a “compact privilege” to practice in a remote state without obtaining a license in that remote state. Significant provisions of the compact include:

1. The creation of a Physical Therapy Compact Commission (commission), which includes one member of the licensure boards of each member state. The commission has various powers and duties granted in the compact, including overseeing the administration of the compact, enforcing the compact, adopting bylaws, promulgating binding rules for the compact, employing an executive director and employees, and establishing and electing an executive board. The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff.

2. A process whereby a licensee may obtain a compact privilege to practice in another member state. A licensee's primary state of residence is considered to be his or her home state, and any other member state in which the licensee wishes to practice is considered a remote state. A licensee providing physical therapy in a remote state under a compact privilege is subject to that state's regulatory authority. A remote state may take action against a licensee's compact privilege in the remote state, and the licensee is then not eligible for a compact privilege in any state until certain criteria are met. If a licensee's compact privilege in any remote state is removed, the individual loses his or her compact privilege in any remote state until certain criteria are met. However, a home state has the exclusive power to impose adverse action against a license issued by the home state. If a home state license is encumbered (i.e., suspended), the licensee loses his or her compact privilege in any remote state until certain criteria are met. Member states may charge a fee for granting a compact privilege and may impose a jurisprudence requirement for granting a compact privilege that assesses an individual's knowledge of the laws and rules governing the practice of physical therapy in a particular state.

3. The ability for member boards to conduct joint investigations of licensees and the ability of member states to issue subpoenas that are enforceable in other states.

4. The creation of a coordinated database and reporting system containing licensure, adverse action, and investigative information on all licensed individuals in member states. A member state must submit a uniform data set to the data system on all individuals to whom this compact is applicable as required by the rules of the commission.

5. Various provisions regarding resolutions of disputes between the commission and member states and between member and nonmember states, including a process for termination of a state's membership in the compact if the state defaults on its obligations under the compact.

Having already been enacted by more than ten states, the compact becomes effective in this state upon enactment of the bill. The compact provides that it may be amended upon enactment of an amendment by all member states. A state may withdraw from the compact by repealing the statute authorizing the compact, but the compact provides that a withdrawal does not take effect until six months after the effective date of that repeal.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB438,1 Section 1 . 14.88 of the statutes is created to read:

AB438,3,6 14.88 Physical therapy licensure compact. There is created a physical therapy compact commission as specified in s. 448.985. The administrator of the commission representing this state shall be an individual described in s. 448.985 (7) (b) 2. The commission has the powers and duties granted and imposed under s. 448.985.

AB438,2 Section 2 . 49.45 (9r) (a) 7. b. of the statutes is amended to read:

AB438,3,9 49.45 (9r) (a) 7. b. A physical therapist who is licensed under subch. III of ch. 448 or who holds a compact privilege under subch. IX of ch. 448.

AB438,3 Section 3 . 146.81 (1) (dg) of the statutes is amended to read:

AB438,3,13 146.81 (1) (dg) A physical therapist or physical therapist assistant who is licensed under subch. III of ch. 448 or who holds a compact privilege under subch. IX of ch. 448.

AB438,4 Section 4 . 146.997 (1) (d) 4. of the statutes is amended to read:

AB438,3,17 146.997 (1) (d) 4. A physician, podiatrist, or perfusionist, physical therapist, or physical therapist assistant licensed under ch. 448 or a physical therapist or physical therapist assistant who holds a compact privilege under subch. IX of ch. 448.

AB438,5 Section 5 . 154.01 (3) of the statutes is amended to read:

AB438,3,21 154.01 (3) “Health care professional" means a person who is licensed, certified or registered under ch. 441, 448, or 455 or who holds a compact privilege under subch. IX of ch. 448.

AB438,6 Section 6. 155.01 (7) of the statutes is amended to read:

AB438,4,12 155.01 (7) “Health care provider" means a nurse licensed or permitted under ch. 441, a chiropractor licensed under ch. 446, a dentist licensed under ch. 447, a physician, physician assistant, perfusionist, podiatrist, physical therapist, physical therapist assistant, occupational therapist, or occupational therapy assistant licensed under ch. 448, a person practicing Christian Science treatment, an optometrist licensed under ch. 449, a psychologist licensed under ch. 455, a physical therapist or physical therapist assistant who holds a compact privilege under subch. IX of ch. 448, a partnership thereof, a corporation or limited liability company thereof that provides health care services, a cooperative health care association organized under s. 185.981 that directly provides services through salaried employees in its own facility, or a home health agency, as defined in s. 50.49 (1) (a).

AB438,7 Section 7 . 252.14 (1) (ar) 4e. of the statutes is amended to read:

AB438,4,16 252.14 (1) (ar) 4e. A physical therapist or physical therapist assistant who is licensed under subch. III of ch. 448 or who holds a compact privilege under subch. IX of ch. 448.

AB438,8 Section 8 . 440.03 (9) (a) (intro.) of the statutes is amended to read:

AB438,4,21 440.03 (9) (a) (intro.) Subject to pars. (b) and (c) and s. 458.33 (2) (b) and (5), the department shall, biennially, determine each fee for an initial credential for which no examination is required, for a reciprocal credential, and for a credential renewal and any fee imposed under s. 448.986 (2) by doing all of the following:

AB438,9 Section 9 . 440.03 (9) (a) 2. of the statutes is amended to read:

AB438,5,11 440.03 (9) (a) 2. Not later than January 31 of each odd-numbered year, adjusting for the succeeding fiscal biennium each fee for an initial credential for which an examination is not required, for a reciprocal credential, and, subject to s. 440.08 (2) (a), for a credential renewal, and any fee imposed under s. 448.986 (2), if an adjustment is necessary to reflect the approximate administrative and enforcement costs of the department that are attributable to the regulation of the particular occupation or business during the period in which the initial or reciprocal credential or, credential renewal , or compact privilege is in effect and, for purposes of each fee for a credential renewal, to reflect an estimate of any additional moneys available for the department's general program operations as a result of appropriation transfers that have been or are estimated to be made under s. 20.165 (1) (i) during the fiscal biennium in progress at the time of the deadline for an adjustment under this subdivision or during the fiscal biennium beginning on the July 1 immediately following the deadline for an adjustment under this subdivision.

AB438,10 Section 10 . 440.03 (11m) (c) 2m. of the statutes is created to read:

AB438,5,15 440.03 (11m) (c) 2m. The coordinated database and reporting system under s. 448.985 (8), if such disclosure is required under the physical therapy licensure compact under s. 448.985.

AB438,11 Section 11 . 440.03 (13) (b) (intro.) of the statutes is amended to read:

AB438,5,23 440.03 (13) (b) (intro.) The department may investigate whether an applicant for or holder of any of the following credentials has been charged with or convicted of a crime only pursuant to rules promulgated by the department under this paragraph, including rules that establish the criteria that the department will use to determine whether an investigation under this paragraph is necessary, except as provided in par. (c) and ss. 441.51 (5) (a) 5. and , 448.980 (5) (b) 3., and 448.985 (3) (a) 4.:

AB438,12 Section 12 . 440.03 (13) (b) (intro.) of the statutes, as affected by 2017 Wisconsin Act 135, section 14, and 2019 Wisconsin Act .... (this act), is repealed and recreated to read:

AB438,6,9 440.03 (13) (b) (intro.) The department may investigate whether an applicant for or holder of any of the following credentials has been charged with or convicted of a crime only pursuant to rules promulgated by the department under this paragraph, including rules that establish the criteria that the department will use to determine whether an investigation under this paragraph is necessary, except as provided in par. (c) and ss. 441.51 (5) (a) 5. and 448.985 (3) (a) 4.:

AB438,13 Section 13 . 440.15 of the statutes is amended to read:

AB438,6,15 440.15 No fingerprinting. Except as provided under ss. 440.03 (13) (c), 441.51 (5) (a) 5., and 448.980 (5) (b) 3., and 448.985 (3) (a) 4., the department or a credentialing board may not require that an applicant for a credential or a credential holder be fingerprinted or submit fingerprints in connection with the department's or the credentialing board's credentialing.

AB438,14 Section 14 . 440.15 of the statutes, as affected by 2017 Wisconsin Act 135, section 17, and 2019 Wisconsin Act .... (this act), is repealed and recreated to read:

AB438,6,22 440.15 No fingerprinting. Except as provided under ss. 440.03 (13) (c), 441.51 (5) (a) 5., and 448.985 (3) (a) 4., the department or a credentialing board may not require that an applicant for a credential or a credential holder be fingerprinted or submit fingerprints in connection with the department's or the credentialing board's credentialing.

AB438,15 Section 15 . 446.01 (1v) (d) of the statutes is amended to read:

AB438,7,3 446.01 (1v) (d) Physical therapy examining board under subch. III of ch. 448. “Health care professional” also includes an individual who holds a compact privilege under subch. IX of ch. 448.

AB438,16 Section 16 . 448.50 (1n) and (1o) of the statutes are created to read:

AB438,7,6 448.50 (1n) “Compact” means the physical therapy licensure compact under s. 448.985.

AB438,7,8 (1o) “Compact privilege” means a compact privilege, as defined in s. 448.985 (2) (d), that is granted under the compact to an individual to practice in this state.

AB438,17 Section 17 . 448.50 (3) and (3m) of the statutes are amended to read:

AB438,7,12 448.50 (3) “Physical therapist" means an individual who has been graduated from a school of physical therapy and holds a license to practice physical therapy granted by the examining board or who holds a physical therapist compact privilege.

AB438,7,15 (3m) “Physical therapist assistant" means an individual who holds a license as a physical therapist assistant granted by the examining board or who holds a physical therapist assistant compact privilege.

AB438,18 Section 18 . 448.51 of the statutes is amended to read:

AB438,7,19 448.51 License required. (1) Except as provided in s. 448.52, no person may practice physical therapy unless the person is licensed as a physical therapist under this subchapter or holds a valid physical therapist compact privilege.

AB438,8,3 (1e) No person may designate himself or herself as a physical therapist or use or assume the title “physical therapist," “physiotherapist," “ physical therapy technician," “licensed physical therapist," “registered physical therapist," “master of physical therapy," “master of science in physical therapy," or “doctorate in physical therapy," or append to the person's name the letters “P.T.," “P.T.T.," “L.P.T.," ”R.P.T.," “M.P.T.," “M.S.P.T.," or “D.P.T.," or any other title, letters, or designation that represents or may tend to represent the person as a physical therapist, unless the person is licensed as a physical therapist under this subchapter or holds a valid physical therapist compact privilege.

AB438,8,9 (1s) No person may designate himself or herself as a physical therapist assistant, use or assume the title “physical therapist assistant," or append to the person's name the letters “P.T.A." or any other title, letters, or designation that represents or may tend to represent the person as a physical therapist assistant unless the person is licensed as a physical therapist assistant under this subchapter or holds a valid physical therapist assistant compact privilege.

AB438,8,13 (2) Except as provided in s. 448.52 (2m), no person may claim to render physical therapy or physiotherapy services unless the person is licensed as a physical therapist under this subchapter or holds a valid physical therapist compact privilege.

AB438,19 Section 19 . 448.56 (2) of the statutes is amended to read:

AB438,8,21 448.56 (2) Fee splitting. No licensee or compact privilege holder may give or receive, directly or indirectly, to or from any other person any fee, commission, rebate, or other form of compensation or anything of value for sending, referring, or otherwise inducing a person to communicate with a licensee or compact privilege holder in a professional capacity, or for any professional services not actually rendered personally by the licensee or compact privilege holder or at the licensee's or compact privilege holder's direction.

AB438,20 Section 20 . 448.565 of the statutes is amended to read:

AB438,8,25 448.565 Complaints. The examining board shall promulgate rules establishing procedures and requirements for filing complaints against licensees and compact holders and shall publicize the procedures and requirements.

AB438,21 Section 21. 448.57 (2) (intro.), (c), (d) and (e), (4) and (5) of the statutes are amended to read:

AB438,9,7 448.57 (2) (intro.) Subject to the rules promulgated under s. 440.03 (1), the examining board may reprimand a licensee or compact privilege holder or may deny, limit, suspend, or revoke a license granted under this subchapter or a compact privilege if it finds that the applicant or , licensee, or compact privilege holder has done any of the following:

AB438,9,8 (c) Advertised in a manner that is false, deceptive, or misleading.

AB438,9,9 (d) Advertised, practiced, or attempted to practice under another's name.

AB438,9,12 (e) Subject to ss. 111.321, 111.322, and 111.34, practiced or assisted in the practice of physical therapy while the applicant's or , licensee's, or compact privilege holder's ability to practice or assist was impaired by alcohol or other drugs.

AB438,9,15 (4) The examining board shall prepare and disseminate to the public an annual report that describes final disciplinary action taken against licensees and compact privilege holders during the preceding year.

AB438,9,18 (5) The examining board may report final disciplinary action taken against a licensee or compact privilege holder to any national database that includes information about disciplinary action taken against health care professionals.

AB438,22 Section 22 . 448.956 (1m) and (4) of the statutes are amended to read:

AB438,9,24 448.956 (1m) Subject to sub. (1) (a), a licensee may provide athletic training to an individual without a referral, except that a licensee may not provide athletic training as described under s. 448.95 (5) (d) or (e) in an outpatient rehabilitation setting unless the licensee has obtained a written referral for the individual from a practitioner licensed or certified under subch. II, III, IV, V, or VII of this chapter; under ch. 446; or under s. 441.16 (2) or from a practitioner who holds a compact privilege under subch. IX of ch. 448.

AB438,10,8 (4) If a licensee or the consulting physician of the licensee determines that a patient's medical condition is beyond the scope of practice of the licensee, the licensee shall, in accordance with the protocol established under sub. (1) (a), refer the patient to a health care practitioner who is licensed under ch. 446 or 447 or subch. II, III or IV of ch. 448; or who holds a compact privilege under subch. IX of ch. 448 and who can provide appropriate treatment to the patient.

AB438,23 Section 23 . Subchapter IX of chapter 448 [precedes 448.985] of the statutes is created to read:

AB438,10,11 CHAPTER 448

AB438,10,14 SUBCHAPTER IX Physical therapy licensure compact

AB438,10,21 448.985 Physical therapy licensure compact. (1) Purpose. (a) The purpose of this compact is to facilitate interstate practice of physical therapy with the goal of improving public access to physical therapy services. The practice of physical therapy occurs in the state where the patient/client is located at the time of the patient/client encounter. The compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.

AB438,10,22 (b) This compact is designed to achieve all of the following objectives:

AB438,10,24 1. Increase public access to physical therapy services by providing for the mutual recognition of other member state licenses.

AB438,10,25 2. Enhance the states' ability to protect the public's health and safety.

AB438,11,2 3. Encourage the cooperation of member states in regulating multistate physical therapy practice.

AB438,11,3 4. Support spouses of relocating military members.

AB438,11,5 5. Enhance the exchange of licensure, investigative, and disciplinary information between member states.

AB438,11,7 6. Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state's practice standards.