WA Certificate of Need Waiver for Psych Beds

The Washington Certificate of Need (“CN”) Program recently announced a temporary change in the CN requirements for acute care hospitals to change the use of existing licensed beds to psychiatric care beds.  Acute care hospitals choosing to convert some of their acute care beds to psychiatric beds will not have to undergo the CN review process.  This exemption however does not extend to the addition of new beds added to the hospital’s licensed bed count, only the conversion of existing beds.  Hospitals will also be allowed to return the use of the exempt psychiatric beds to general acute care services (i.e. med/surg) without full CN review.

In order to take advantage of this exemption, acute care hospitals will still have to submit a “Hospital Change of Use Exemption Hospitals Licensed Under RCW 70.41 Proposing Psychiatric Beds” application to the CN Program with an application fee of $1,925.  If the project is approved it must commence within two years of the exemption issue date (unless a 6 month extension is otherwise granted).  Hospitals applying for this exemption will still need to meet the physical plan standards and staffing ratios required for providing psychiatric care.

For more information about this exemption or Certificate of Need generally please contact Elana Zana.

Providing Telemedicine Services? Pay Attention To State Licensing Requirements

Advancements in telemedicine offer exciting treatment possibilities for rural communities. Through audio-visual technology, patients in small communities now have the opportunity to access the expertise of specialists at large medical facilities in metropolitan areas.

However, along with all of the promise of telemedicine technologies, there are also some important legal issues that health care providers need to understand.  One of the most important issues is whether physicians who provide treatment advice to a patient through telemedicine must be licensed in the state where the patient is located.  For example, if a patient is located in Washington State, can a physician who is only licensed in Oregon provide telemedicine services to the patient?

The Federation of State Medical Boards (FSMB) has recently addressed the licensure issue in the Model Policy for the Appropriate Use of Telemedicine Technologies.  The Policy  makes it clear that a physician must be licensed by, or under the jurisdiction of, the medical boards of the state where the patient is located.

It is unclear whether state medical boards will follow the Model Policy from FSMB.  For example, Washington State law currently allows physicians licensed in another state to “practice medicine” in Washington so long as they do not open an office or appoint a place of meeting patients or receiving calls within Washington. (RCW 18.71.030). Of course, this provision could change in the future.

In order to avoid the unlawful practice of medicine when providing telemedicine services, physicians and healthcare facilities should take time to understand the licensing regulations in the state where the patient is located.

For more information on the legal issues related to telemedicine, please contact Casey Moriarty.

Skagit County Agrees to Pay $215,000 for HIPAA Violations

On March 6, 2014, the U.S. Department of Health and Human Services, Office for Civil Rights (“OCR”) reached a $215,000 settlement with Skagit County in northwest Washington state for violations of the HIPAA Privacy, Security and Breach Notification Rules, according to terms of the Resolution Agreement.  This represents the first OCR settlement with a county government for HIPAA non-compliance. For two weeks in September 2011, the electronic protected health information (“ePHI”) for 1,581 individuals was exposed after the ePHI had been inadvertently moved to a publicly accessible web server maintained by Skagit County.  The accessible files included protected health information about the testing and treatment of infectious diseases.

The OCR investigation revealed that Skagit County failed to provide notification to individuals as required by the Breach Notification Rule and that the county failed to implement sufficient policies and procedures to prevent, detect, contain, and correct security violations. Further, Skagit County failed to provide necessary and appropriate security awareness and training for its workforce members.  As part of the settlement, the county has agreed to enter into a Corrective Action Plan to address deficiencies in various HIPAA compliance areas, including written policies and procedures, documentation requirements, training, and other measures.

This settlement highlights the importance for all covered entities and business associates, whether in the government or private sector, to implement policies and procedures to safeguard ePHI and, in case of a breach, to respond promptly and effectively. For more information about this OCR settlement or for assistance with HIPAA compliance, please contact Jefferson Lin or David Schoolcraft.

HHS Issues HIPAA Guidance For Mental Health

HHS recently issued HIPAA guidance for mental health practitioners, in an effort to help providers wade through complicated decisions of when disclosures of patient information are permissible.  This guidance, set up in a FAQ format, is designed to incorporate common questions related to the intersection of mental health and privacy laws.  The guidance addresses when healthcare providers are permitted to:

  • Communicate with a patient’s family members, friends, or others involved in the patient’s care;
  • Communicate with family members when the patient is an adult;
  • Communicate with the parent of a patient who is a minor;
  • Consider the patient’s capacity to agree or object to the sharing of their information;
  • Involve a patient’s family members, friends, or others in dealing with patient failures to adhere to medication or other therapy;
  • Listen to family members about their loved ones receiving mental health treatment;
  • Communicate with family members, law enforcement, or others when the patient presents a serious and imminent threat of harm to self or others; and
  • Communicate to law enforcement about the release of a patient brought in for an emergency psychiatric hold.

The guidance also addresses FERPA (privacy laws in a school setting), Federal alcohol and drug abuse confidentiality (42 CFR Part 2 Programs) and the rights of parents to have access to a minor child’s information.    Though not addressed in the guidance, those mental health practitioners practicing in Washington State should also be aware of  the new statutes regulating mental health record disclosures which take effect on July 1, 2014.

For assistance in navigating these privacy rules please contact Elana Zana or Dave Schoolcraft.

Washington Medicaid EHR Incentive Program Webinar

The Washington State Health Care Authority announced that it will be hosting a webinar to aid in the registration for the Medicaid EHR Incentive Program.  This will help providers who are registering and attesting to both adopt, implement and upgrade and meaningful use.

Topics Include: Navigating the WA ST EHR Attestation Application-eMIPP (MU Stage 1)

  • Attestation
  • Navigating the eMIPP application
  • How to get paid correctly
  • Live Q & A after presentation

To register click here.

The state of Washington has also published helpful tools for registration, including user guides and state specific worksheets (for example the .95 multiplier).

These webinars are very informative and it is recommended that all first time applicants (and those applicants that need a refresher) attend.

Also, note that though the Medicare EHR Incentive Program has extended registration through March 31, 2014, the Washington Medicaid EHR Incentive Program requires registration and attestation by February 28, 2014.

For assistance with registration and attestation for the Medicare or Medicaid EHR Incentive Program please contact Elana Zana.

 

DOH Issues New Hospital CN Rule & Transparency Requirements

Prior to the end of the year, and in compliance with Governor Inslee’s directive, the Washington Department of Health (DOH) issued new hospital Certificate of Need (CN) rules and transparency requirements for existing hospitals.

Effective January 23rd, hospitals wishing to affiliate with one another (or other types of corporate restructuring) will now have to undergo full CN review.  The new rules modify WAC 246-310-010 and adopt a broad definition of “sale, purchase, or lease” to include affiliations, corporate membership restructuring, “or any other transaction.”  DOH, in response to the over 1,000 public comments received on these new rules (including the transparency rules below) explained:

The purpose of this clarification is to focus on the outcome of these transactions to bring them within CoN review.  CoN evaluation includes review of the reduction or loss of services and the community’s access to alternatives if there is a reduction or loss.

In addition, DOH issued a modification to the hospital licensing requirements.  This modification now requires hospitals to submit to DOH and publish on their own websites (“readily accessible to the public”) the following policies related to access to care:  admission, nondiscrimination, end of life care, and reproductive health care.  Hospitals must comply with this requirement no later than March 24, 2014.  Hospitals that make changes to these policies must also notify DOH of those changes within thirty days.

Since the amendment to the hospital licensing rules require online access to hospitals’ nondiscrimination policies, now is an excellent time for hospitals to review nondiscrimination policies to be sure they are consistent with all applicable laws.  Hospitals are “places of accommodation” under local, state, and federal nondiscrimination laws, which vary by jurisdiction.  For example, federal law prohibits genetic discrimination, which is not covered by Washington state law; state law prohibits discrimination on the basis of marital status, sexual orientation, and gender expression or identity, which are not covered under federal law; and the City of Seattle prohibits discrimination on the basis of political ideology, which is not covered under state or federal law.  Hospital nondiscrimination policies should be tailored to cover all the jurisdictions in which you provide services.  For assistance with drafting a nondiscrimination policy please contact Karen Sutherland.

For more information about the access to care policies or certificate of need generally please contact Elana Zana.

 

 

Proposed CN Rules on Hospital Change of Control & Transparency

The Washington State Department of Health recently released its proposed rules and letter to Governor Inslee with regard to his directive to open rule making on the Certificate of Need (“CN”) hospital change of control regulations and transparency.  The catalyst for these modifications is the recent spate of affiliations among Washington state hospitals.  The Department of Health was instructed to consider “how the structure of affiliations, corporate restructuring, mergers, and other arrangements among health care facilities result in outcomes similar to the traditional methods of sales, purchasing and leasing of hospitals.”  The current rules require a CN for any “sale, purchase, or lease” of a hospital, but does not provide a definition to explain what is encompassed by a “sale, purchase, or lease”.   The Department of Health has issued its proposed rules creating a definition of “sale, purchase, or lease” in WAC 246-310-010 as follows:

“Sale, purchase, or lease” means any transaction in which the control, either directly or indirectly, of part or all of any existing hospital changes to a different person including, but not limited to, by contract, affiliation, corporate membership restructuring, or any  other transaction.”  WAC 246-310-010(54) (proposed)

The Governor’s directive also focused on transparency for consumers:

The Department’s rulemaking process shall also consider ways to improve transparency for consumer information and ease of use, specifically the Department shall ensure hospitals supply non-discrimination, end of life care and reproductive health care policies; and the Department shall ensure that consumers have access to the policies on its webpage. The Department’s rulemaking process shall also consider the factors in RCW 43.06.155, the principles and policies in the implementation of health reform, including the guarantee of choice for patients.

As a result of comments received from stakeholders, the Department of Health determined that the submission and posting of hospital access policies should be located in the hospital licensing rules, rather than in the CN rules.  The proposed rules suggest adding new provisions to the hospital licensing regulations, specifically WAC 246-320-141 governing patient rights and organizational ethics:

(5) No later than sixty days following the effective date of this section, every hospital must submit to the department its policies related to access to care:
(a) Admission;
(b) Nondiscrimination;
(c) End of life care; and
(d) Reproductive health care.
(6) The department shall post a copy of the policies received under subsection (5) of this section on its web site.
(7) If a hospital makes changes or additions to any of the policies listed under subsection (5) of this section, it must submit a copy of the changed or added policy to the department within thirty days after the hospital approves the changes or additions.
(8) Hospitals must post a copy of the policies provided under subsection (5) of this section to its own web site where it is readily accessible to the public, without requiring a login or other restriction.
The Department of Health is soliciting feedback and hosting a hearing on November 26, 2013 at 1 PM to review the proposed rules.  It expects to file permanent rules on December 10, 2013.
If you have any questions regarding these proposed rules or Certificate of Need in general please contact Elana Zana.

Public Hospital Districts Offering Maternity Services Must Offer Abortion Services

A recent Washington Attorney General Opinion concludes that a public hospital district may not administer or fund programs to provide maternity care benefits or services without making provision for abortion services, benefits, and information.  The Opinion primarily relies on RCW 9.02.100 and RCW 9.02.160 which respectively provide in part:

The sovereign people hereby declare that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.

Accordingly, it is the public policy of the state of Washington that:

(1) Every individual has a fundamental right to choose or refuse birth control;

(2) Every woman has the fundamental right to choose or refuse to have an abortion (subject to legislative limitations)

If the state provides, directly or by contract, maternity care benefits, services, or information to women through any program administered or funded in whole or in part by the state, the state shall also provide women otherwise eligible for any such program with substantially equivalent benefits, services, or information to permit them to voluntarily terminate their pregnancies.

The Opinion emphasizes that no Washington public hospital district is required to provide maternity care benefits, services, or information.  However, it endorses a broad interpretation of these benefits to include a large range of prenatal, childbirth, and postpartum services and information.  It also concludes that a public hospital district provides maternity care benefits if it financially subsidizes a healthcare provider that provides these benefits.

Accordingly, the Opinion concludes that if a public hospital district contracts for the provision of maternity care benefits and subsidizes this through the use of public funds it must provide the substantially equivalent benefits, services and information required by RCW 9.02.160.  The Opinion expresses no opinion on how public hospital districts might comply with these requirements or what might constitute substantially equivalent benefits, services and information.

For more information about this Opinion or hospital compliance requirements please contact Greg Montgomery.

PSBJ Article on HIPAA Interviews OMW Attorney David Schoolcraft

The Puget Sound Business Journal issued an article today on HIPAA and the impact on business associates.  The article interviewed Ogden Murphy Wallace Attorney David Schoolcraft because of his expertise in healthcare privacy law and health information technology.  The article focuses on the impact HIPAA has on health IT start-ups and their relationships with HIPAA covered entities.  To read the article click here (subscription required).

Washington Certificate of Need Program Commences Rule Making: Consumer Transparency in Affiliations & Dialysis

The Washington State Certificate of Need Program has announced its commencement of the rule-making process related to hospitals and dialysis.  This action is in response to the directive issued last month by Governor Inslee instructing the CN Program to expedite rule making related to the corporate restructuring, affiliations, acquisitions and mergers occurring in hospitals across the state.  His directive requires that:

The Certificate of Need process should be applied based on the effect that these transactions have on the accessibility of health services, cost containment, and quality, rather than on the terminology used in describing the transactions or the representations made in the preliminary documents.

The Department’s rulemaking process shall also consider ways to improve transparency for consumer information and ease of use, specifically the Department shall ensure hospitals supply non-discrimination, end of life care and reproductive health care policies; and the Department shall ensure that consumers have access to the policies on its webpage. The Department’s rulemaking process shall also consider the factors in RCW 43.06.155, the principles and policies in the implementation of health reform, including the guarantee of choice for patients.

In response to this directive, the CN Program has released concept rules to implement the directive.  These concept rules contain two significant modifications:

1.  A new defined term in WAC 246-310-010: “Sale, purchase, or lease” means any transaction in which the control, directly or indirectly, of part or all of any existing hospital changes to a different person, including but not limited to by contract, affiliation, corporate membership restructuring, or any other transaction.

This change is significant, as the “sale, purchase, or lease” of all or part of an existing hospital is subject to the CN rules and review.  The new definition expands the applicability of the CN rules and review.  Whereas previously affiliations were typically reviewed under Determinations of Reviewability, the expanded definition would subject such transactions to CN approval.

2.  A new section which collects hospital policies, maintains the policies and list of limitations on certain services online, and requires all hospitals to submit these policies and lists within 60 days of the effective date of the new rule.  The proposed new section is reproduced below:

New Section WAC 246-310-XXX Collection of Hospital Policies

1) Every hospital must submit to the department its following policies related to access to care:

a) Admission;

b) Non-discrimination;

c) End of life care; and

d) Reproductive health care.

2) If the effect of one or more of a hospital’s policies required under subsection (1) of this section limits or excludes access to services authorized by law, the hospital must submit to the department a list of services that are limited or not available at the facility.

3) The department shall post a copy of the policies received under subsection (1) of this section and lists received under subsection (2) of this section on its website.

4) If the hospital makes changes to any of the policies listed under subsection (1) of this section, it must submit a copy of the changed policy to the department within thirty days after the hospital approves of the changes.

5) No later than sixty days following the effective date of this rule each hospital must submit to the department the documents identified under subsections (1) and (2) of this section.

These proposed rules will have an impact on future transactions and existing hospitals.  The proposed revisions will be discussed at an August 5th workshop located at the Department of Health.

If you would like further information about these proposed rules or certificate of need in general please contact Elana Zana.