A recent judicial decision has prevented the State’s implementation of a controversial policy that would limit payment for Medicaid patients to three “non-emergency” visits to emergency departments each year.  The State asserted that implementation of the rule would result in significant cost savings for the State by better directing non-emergent uses to primary care providers.  Opponents of the rule are concerned that the policy will endanger Medicaid enrollees.  The rule included in the definition of “non-emergency” visits many truly emergent conditions such as chest pain, abdominal pain, miscarriage, and breathing problems.

Washington physicians and hospitals, including the Washington Chapter of the American College of Emergency Physicians (WA/ACEP), the Washington State Medical Association (WSMA), the Washington State Hospital Association (WSHA), and Seattle Children’s Hospital, filed the lawsuit to prevent implementation of the State’s policy.  On November 10, 2011, a superior court judge halted the State’s implementation of the policy and found that the State failed to follow proper rulemaking procedures.  Under the ruling, the policy may not be implemented until formal rulemaking is complete.  The formal rulemaking process will include public hearings and public comments before implementing the new policy.  The judge did not make a ruling regarding the content of the policy.

To read the Washington State Hospital Association’s article on this topic click here.

The Washington Medicaid Purchasing Administration (“MPA”) issued amendments to WAC Chapter 388-502 – Administration of medical programs – Providers. The MPA modified and added additional regulations regarding provider enrollment and eligibility, healthcare record requirements, and dispute processes. The following
regulations are either new or were amended:

388-502-0002 Eligible provider types

388-502-0003 Noneligible provider types

388-502-0005 Core Provider Agreement (CPA)

388-502-0010 When the department enrolls

388-502-0012 When the department does not enroll

388-502-0014 Review and consideration of an applicant’s history

388-502-0016 Continuing requirements

388-502-0018 Change of ownership

388-502-0020 Healthcare record requirements

388-502-0030 Termination of a provider agreement – For cause

388-502-0040 Termination of a provider agreement – For convenience

388-502-0050 Provider dispute of a department decision

388-502-0060 Reapplying for participation

388-502-0230 Provider payment reviews and dispute rights

These revised rules take effect June 9, 2011.

To access the revised rules (with strikeouts and underlining) click here.

A clean version of these rules will be available on the State Legislature’s website.

Effective July 22, 2011, Public Hospital Districts in Washington will now be allowed to fundraise.  The new bill amended RCW 70.44.060 to allow Public Hospital Districts to:

“To solicit and accept gifts, grants, conveyances, bequests, and devises of real or personal property, or both, in trust or otherwise, and to sell, lease, exchange, invest, or expend gifts or the

proceeds, rents, profits, and income therefrom, and to enter into contracts with for-profit or nonprofit organizations to support the purposes of this subsection, including, but not limited to, contracts1 providing for the use of district facilities, property, personnel, or

services.”  To read the full text of the bill click here.

On August 13, 2010, the Washington State Department of Health (DOH) issued an interpretive/policy statement that certified nuclear medicine technologists who obtain Computed Tomography (CT) certification through the American Registry of Radiologic Technologists (ARRT) or diagnostic radiologic technologists who have obtained Positron Emission Tomography (PET) certification through the Nuclear Medicine Technology Certification Board (NMTCB) may perform fusion imaging PET/CT procedures without holding dual certification as a nuclear medicine technologist and as a diagnostic radiologic technologist.  The DOH determined that the previous requirement of having individuals with dual certification operating the PET/CT equipment or by assigning two individuals, one of whom was a nuclear medicine technologist and one of whom was a diagnostic/radiographer, is inefficient, cost prohibitive and creates a limitation to patient access to the technology. 

 To view the interpretative statement, click here.

The Washington State Supreme Court recently ruled in Broom v. Morgan Stanley DW Inc. that the statute of limitations, which limits the time within which a party may initiate a dispute, does not apply to agreements governed by the Washington Arbitration Act, in which the parties have agreed to arbitrate disputes unless the parties have expressly agreed that the statute of limitations applies.  Since the Washington Arbitration Act does not apply to employment agreements or collective bargaining agreements, this ruling does not directly affect the interpretation of employment related arbitration clauses, but the ruling creates some uncertainty regarding whether the court may apply similar reasoning to individual employment agreements.  This ruling will affect most other agreements that contain arbitration clauses.

This ruling by the court was unexpected, and contrary to the manner in which parties in Washington have typically drafted arbitration provisions.  The result is that disputes related to agreements with arbitration clauses executed before this recent Supreme Court option may now be brought at any time, and will not be barred by the passage of time. 

In most cases it will be mutually advantageous to amend the arbitration clause, since most businesses do not want an open ended exposure to claims.  And, while the recent case does not directly cover employment and collective bargaining agreements, the cautious approach is to review all arbitration provisions within all contracts, including employment contracts and consider the addition of statute of limitation language.

For assistance in reviewing your contracts or drafting an amendment to your arbitration clause please contact Doug Albright.