Change of Law: Hospital Action Required
| To: | Chief Medical Officers, Chief Nursing Officers, Rural Chief Executive Officers, Legal Counsel and Government Affairs Staff |
| From: | Zosia Stanley, Associate General Counsel zosias@wsha.org | (206) 577-1821 |
| Subject: | New Law Relating to Health Care Providers Giving Pregnancy and Miscarriage-Related Patient Care |
Purpose
The purpose of this bulletin is to alert hospitals and health care systems about changes in law related to SSB 5140, effective July 25, 2021.
SSB 5140 states that health care providers – who are acting in good faith, within the provider’s scope of practice, education, training, and experience and within the accepted standard of care – may provide health care services related to complications of pregnancy in cases in which failure to provide such care would violate the accepted standard of care or where the patient’s medical condition poses a risk to the patient’s life or bodily function. The law delineates that health care entities may limit provision of these services under certain circumstances for quality and safety reasons. The new law provides protections for providers acting under the law.
This new law requires all health care entities to annually provide educational materials about the law to health care providers and staff.
When negotiating this legislation, WSHA’s advocacy helped protect a health entity’s ability to establish limitations on provider practice for quality and safety reasons, including the peer review process. WSHA’s efforts also ensured that providers providing care under the bill must act within their appropriate scope of practice, education, training, and experience. Unfortunately, the law includes a private cause of action for violations of the law. WSHA strongly opposed this provision.
Applicability/Scope
The requirements in SSB 5140 apply to any entity that supervises, controls, grants privileges to, directs the practice of or indirectly restricts the practice of a health care provider. In short, this law applies to hospital, health care systems and most other health care facilities.
“Health care provider” is broadly defined as someone who is licensed or authorized to provide health care in the ordinary course of business or practice of a profession.
Recommendation
- Review this bulletin and SSB 5140 to understand the new requirements. WSHA cannot offer legal advice to members and recommends hospitals engage legal, risk, compliance, and leadership as appropriate to evaluate compliance with the new law.
- Evaluate current hospital standards, policies, and procedures relevant to health care services related to complications of pregnancy, including but not limited to health services related to miscarriage management and treatment for ectopic pregnancies.
- While not specifically referenced under the law, WSHA encourages hospitals to review and evaluate hospital access to care policies, especially those related to reproductive health, end-of-life care, admission, and nondiscrimination. Acute care hospitals should also review their state-mandated Hospital Reproductive Services Form. Current versions of access to care policies and the reproductive services form must be posted on the hospital’s website and submitted to the Department of Health to be posted on the DOH Hospital Polices website. WSHA recommends hospitals verify that the policies on the DOH website are current and up to date and these policies are accessible on the hospital’s own website.
- Beginning March 1, 2022, give health care providers and staff the written materials prepared by the Department of Health about the provisions of the new law. The law requires the materials be provided at hiring/contracting and annually to all providers and staff. Consider pairing this new notice with the similar mandatory notice DOH developed in 2020.
Overview
SSB 5140 includes (1) protections for health care providers relating to pregnancy and miscarriage-related patient care, (2) a private cause of action for individuals aggrieved by a violation of the law, and (3) requirements that health care entities provided notice about these protections. Due to WSHA’s advocacy, the provisions of the new law are codified in Title 70 RCW relating to public health and safety (generally under the purview of the Department of Health), rather than Title 18 RCW related to business and professions.
The following definitions apply:
- “Health care entity” means “an entity that supervises, controls, grants privileges to, directs the practice of, or directly or indirectly restricts the practice of, a health care provider.”
- “Health care provider” has the same meaning as in RCW 70.02.010:
- “a person who is licensed, certified, registered, or otherwise authorized by the law of this state to provide health care in the ordinary course of business or practice of a profession.”
For context, the services and treatment options available at a hospital or other health care entity will depend on the facility’s capacity and expertise to provide high-quality health care in a safe and caring environment. Hospitals have responsibilities and obligations to set standards for the services provided at the hospital and determine through privileging and credentialing which providers are competent to provide that care. Health care providers act within the applicable scope of practice, ethical standards and the provider’s education, training, experience, and knowledge when providing patient care.
- Health Care Provider Protections Related to Pregnancy and Miscarriage-Related Patient Care
Pursuant to SSB 5140, a health care entity may not limit a health care provider from providing patients with health care services related to complications of pregnancy (including but not limited to health services related to miscarriage management and treatment for ectopic pregnancies) in cases in which failure to provide the service would violate the accepted standard of care or when the patient presents a medical condition manifesting itself by acute symptoms of sufficient severity such that the absence of medical attention could reasonably be expected to pose a risk to the patient’s life or risk of irreversible complications or impairment to the patient’s bodily functions or any bodily organ or part. Importantly, the provider must act in good faith, within the provider’s scope of practice, education, training, and experience and within the accepted standard of care.A health care entity may limit a health care provider’s provision of care related to patients with health care services related to complications of pregnancy as noted above for purpose of:- Complying with the network or utilization review requirements of any program or entity authorized by state or federal law to provide insurance coverage for health care services to enrollees; or
- Quality control and patient safety, including when quality control or patient safety issues are identified pursuant to peer review.
A health care entity cannot discharge, demote, suspend, discipline, or otherwise discriminate against a health care provider for providing services consistent with the law established in SSB 5140.
- Private Cause of Action
Over WSHA’s strong objections, SSB 5140 includes a broadly framed private cause of action. A private cause of action allows a private person, as opposed to a governmental entity, to bring a civil lawsuit to seek judicial relief from injuries caused by a violation of law. The private cause of action in SSB 5140 applies to the health care provider providing health care services related to complications of pregnancy (not the notice requirements discussed elsewhere in this bulletin). The private cause of action provision in SSB 5140 gives individuals the right to bring a lawsuit for an injury caused when a health care provider is prevented from providing health care services as required by the new law (no private cause of action is provided for failure to comply with the notice requirements, discussed elsewhere in this bulletin).The private cause of action provision in SSB 5140 states:
“A patient, a health care provider, or an individual, who is aggrieved by a violation of section 2 of this act [the section relating to health care services related to complications of pregnancy], may bring a civil action against a health care entity to enjoin further violations, to recover damages, or both. The prevailing party in such action may in the discretion of the court recover costs of litigation and reasonable attorneys’ fees.”
WSHA opposed the above provision as unnecessary and overly broad. The new law already provides recourse for health care providers against a health care entity that acts in a manner inconsistent with the bill, encompassing unlawful employment actions related to retaliation. In addition, there is existing law that provides recourse for providers. RCW 43.70.075 provides whistleblower protections for individuals reporting concerns or complaints to the Department of Health. WSHA was successful in modifying the language about recovery of litigation costs and attorneys’ fees. The court has discretion to award costs and fees to the prevailing party.
- Health Care Entity Notice Requirements
Health care entities must provide DOH-developed materials to health care providers and staff (1) at the time of hiring, contracting with, or privileging; and (2) on a yearly basis thereafter. DOH is required to design, prepare, and make available online, written materials to clearly inform health care providers and staff of the provisions of, and authority the new law established in SSB 5140.DOH is required to produce the materials by December 31, 2021. Health care entities must start providing the DOH-prepared materials to providers and staff beginning March 1, 2022. Based on prior experience, WSHA successfully advocated for a grace period between the DOH deadline to produce the materials and the date hospitals and other health care entities must start providing the materials to providers and staff. WSHA will update hospitals and health systems when these materials are available.
WSHA’s 2021 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high-priority bills that passed in 2021 to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for the release of upcoming resources on other laws and additional resources for implementation.
References
Substitute Senate Bill 5140 – Relating to Protecting Pregnancy and Miscarriage-Related Patient Care
WSHA Bulletin – New Law Protects Health Care Providers Giving Patients Appropriate, Accurate Information Care and Treatment Options (2020)
RCW 7.70.065 —Washington State Informed Consent Law
