| To: | Chief Nursing Officer, Rural Hospital Chief Executive Officers, Legal Counsel, Human Resource Leads and Government Affairs Leaders |
Staff Contact:
|
Zosia Stanley, JD, MHA, Vice President and Associate General Counsel zosias@wsha.org | 206-216-2511 Mary Storace, Policy Analyst, Government Affairs |
| Subject: | Changes to the Washington State Death with Dignity Act and New Requirements for Hospital and Hospice Reporting Related to end-of-life services – Effective July 23, 2023 with new reporting requirements beginning January 16, 2024. |
Purpose
The purpose of this bulletin is to inform hospitals of recent amendments to the Washington State Death with Dignity Act and new reporting obligations for acute care hospitals and hospice providers pursuant to ESSB 5179 (2023).
Changes to the Death with Dignity Act were effective July 23, 2023. Acute care hospitals licensed under chapter 70.41 RCW will be required to submit a Hospital End of Life Services form to the Department of Health and post the form on the hospital’s own website, beginning on January 16, 2024. WSHA has worked with the Department of Health on the development of the new form. This requirement is similar to existing law that requires each hospital submit a Hospital Reproductive Health Services form to the Department of Health (DOH) and post the form on the hospital’s website.
In addition, hospice entities licensed under chapter RCW 70.127, have a new requirement to report generally available access to end-of-life care and Death with Dignity Act services.
Applicability/Scope
Changes to the Death with Dignity Act (the Act) apply broadly, including to all hospitals and health care providers. The expansion of health care providers authorized to perform duties under the Act applies to physician assistants and advanced registered nurse practitioners.
New reporting requirements related to generally available end-of-life care and Death with Dignity Act services apply to acute care hospitals.
All agencies or facilities that provide hospice services are also required to submit access to care end-of-life and Death with Dignity policies to the Department of Health.
Recommendations
- Review this bulletin and ESSB 5179 to understand the scope of the law. WSHA recommends hospitals engage legal, risk, compliance, and leadership as appropriate to evaluate compliance with the new law.
- Carefully review and complete the DOH Hospital End of Life Services form about which services are and are not generally available at the hospital. The form is available to download on the DOH Hospital Policies website (under “Access to Care” section; click on “Download the fillable End of Life Services form (PDF)”) and linked below in this bulletin. Submit the completed form to DOH by emailing it to HospitalPolicies@doh.wa.gov by January 16, 2024. DOH will provide an acknowledgment of receipt, but it may take DOH several days to process the emails and to post the forms online. Hospitals must also post the end-of-life services form in a location that is publicly available.
- Review, update, and submit policies related to end-of-life care and the Death with Dignity Act to the Department of Health. The end-of-life policy requirement is existing law and ESSB 5179 added the Death with Dignity Act requirement. WSHA encourages hospitals to also review hospital access to care policies (related to reproductive health, end-of-life care and death with dignity, admission, and nondiscrimination). Acute care hospitals should also review their state-mandated Hospital Reproductive Services Form. Current versions of access to care policies, the reproductive services form, and (beginning January 16, 2024) the end-of-life services form must be posted on the hospital’s website and submitted to the Department of Health to be posted on the DOH Hospital Policies website. WSHA recommends hospitals regularly verify that the policies and services forms on the DOH website are current and up to date and these policies and forms are accessible on the hospital’s own website. If a hospital makes a change to their policy, they are required to submit a new policy to the Department within 30 days.
- Review hospital policies and procedures related to the Death with Dignity Act to reflect changes to the Act, including expansion of qualified medical providers and timelines under the Act. The Act continues to allow health care facilities and providers to decide whether to participate in the Act and, for facilities, whether to allow participation by providers at the facility’s premises. If a facility decides not to allow participation, it may prohibit providers from participating on the facility’s premises if it has given notice to all health care providers with privileges to practice on the premises and to the general public of the prohibiting facility’s policy regarding participating under the Act. ESSB 5179 clarifies that nonparticipating facilities, including acute care hospitals, may not contractually disallow health care providers from participation in the Act outside of the scope of the provider’s capacity as an employee or independent contractor and away from the non-participating facility’s premises.
- Note: The Department of Health is still developing a process for hospice providers to submit policies related to access to care regarding end-of-life care and the Death with Dignity Act as required by ESSB 5179. Once DOH finalizes this process, hospice providers will be required submit policies that include specific information about which end-of-life services are and are not generally available at each agency or facility and contact information for the agency or facility in case patients have specific questions about services available at the hospice.
Overview
ESSB 5179 (codified at chapter 70.245 RCW) amends the Death with Dignity Act (the Act) with the intent of increasing patient access to provisions of the Act. The Act allows terminally ill adults with 6 months or less to live to voluntarily engage with the death with dignity process and receive and self-administer life ending medication. To participate in the Act, an individual must be a “qualified patient” – a competent adult who is resident of Washington state and satisfies the requirements of the Act[1]. This law continues to allow health care facilities and health care providers the choice to participate or not participate.
[1] Within this bulletin, references to patients in the context of Death with Dignity Act refers to “qualified patients.”
Specifically, ESSB 5179, makes the following changes:
- Alters required hospital policies and requires new form: Requires a new access to care reporting requirement. All Washington state acute care hospitals must submit policies to the Department of Health regarding end-of-life care and death with dignity act services and submit a new form to the Department of Health regarding which end of life services are and are not generally available at a hospital;
- Expands the types of providers who may participate in the Act and changes terminology: Includes advanced registered nurse practitioners and physician assistants to the definition of qualified medical providers authorized to perform duties pursuant to the Act;
- Changes the timelines under the Act: Reduces the 15-day waiting period between a first and second oral request for medication to 7-days and eliminates the 48-hour waiting period for a written medication request;
- Clarifies provider participation and non-participation: Clarifies that non-participating facilities may not prohibit a health care provider from participating in the Act outside the scope of their employment, when not performing such duties on the non-participating providers premises. A health care provider charting a patient’s initial request for death with dignity services, as referenced in RCW 70.245.020, does not qualify as participation under the Act.
- Changes delivery of medication under the Act: Allows life-ending medications to be mailed or delivered to a patient.
- Requires new hospice policies: Requires every agency or facility that provides hospice services in the state, as defined by RCW 70.127.010 , to submit to the Department of Health its policies related to access to end-of-life care and Death with Dignity Act services.
- Alters required hospital policies and mandates new end of life services form
Pursuant to RCW 70.41.520, acute care hospitals licensed under chapter 70.41 RCW are required to submit end-of-life and Death with Dignity Act access to care policies to the Department of Health. Hospitals were previously required by rule to submit policies related to end-of-life care to the Department and post the policies on the hospitals’ websites. This requirement has been moved from regulation to statute, and now additionally includes Death with Dignity Act services. If a hospital amends their policy, the new policy must be submitted to the Department of Health within 30 days.Acute care hospitals are also required to use the new DOH-developed Hospital End of Life Services Form “to provide the public with specific information about which end-of-life services are and are not generally available at each hospital.” Hospitals must submit the form to DOH by January 16, 2024, and submit updated forms as services change.
The Department of Health will post policies and forms to the Department’s Hospitals Policies website to make information publicly available and accessible. Hospitals must post their policies and forms to the hospital’s website.
- Expands the types of providers who may participate in the Act and changes terminology
Various definitions in ESSB 5179 are amended from “physician” to “qualified medical provider” to reflect the expansion of the types of licensed health care providers authorized to perform duties under the Act. This expansion includes advanced registered nurse practitioners licensed under chapter 18.79 RCW and physician assistants licensed under chapter 18.71A RCW. Pursuant to RCW 70.245.230 a patient may select an attending or consulting qualified medical provider of their choosing if a physician or osteopathic physician serves in one of those roles.A qualified medical provider may perform the duties established in RCW 245.040 relating to providing patients with care, referrals, and counseling as attending or consulting providers pursuant to the Act. Patients may select attending and consulting qualified medical providers of the patient’s choice. However, if the patient selects an attending qualified medical provider who is not a licensed physician, the patient must select a physician to serve as the patient’s consulting qualified medical provider. Similarly, a patient may only select a non-physician as the consulting qualified medical provider, if the patient’s attending qualified medical provider is a physician. Further, the attending and consulting providers may not have a direct supervisory relationship with each other.
- Changes to the timelines under the Act
ESSB 5179 amends RCW 70.245.090 to shorten the waiting period between a first oral and written request and the second oral request from 15 days to 7 days for a patient to receive a prescription for end-of-life medication. Section 12 of the bill amends RCW 70.245.110 to eliminate the 48-hour waiting period between the date a patient signs a written request for medication and the writing of a prescription. - Updates provider participation and non-participation
Section 16 of ESSB 5179 amends RCW 70.245.190 to clarify in law that health care providers are disallowed from contractually or otherwise prohibiting health care providers from participating in the Act when acting outside of the scope of employment or independent contractor status, and when at a location that is not on the prohibiting provider’s premises.If a provider at a non-practicing facility performs duties pursuant to the Act outside of their capacity as an employee or independent contractor, they must do so at a location that is not owned, leased by, or under the control of the prohibiting health care provider.
- Changes to delivery of medication under the Act
Section 5 of the bill amends RCW 70.245.040 to provide that an attending qualified medical provider may now electronically submit prescriptions for life-ending medications to a pharmacist. Delivery of the dispensed medication to a qualified patient or attending qualified medical provider may be made by personal delivery, messenger service, by the United States Postal Service or similar private parcel delivery entity. Previously, written prescriptions could only be delivered through mail or facsimile. The addressee or other authorized person must sign for the medications upon time of delivery. - Requires new hospice policies
Pursuant to RCW 70.127.290, every agency or facility that provides hospice services in the state, as defined by RCW 70.127.010 , are required to submit policies related to end-of-life care and death with dignity services to the Department of Health.The form must include:
- Information about the end-of-life and death with dignity services that are generally available at an agency or facility; and
- Contact information for the agency or facility, for patients to contact if they have any questions.
A copy of the policy must be posted to the hospice agency or facility website. If a policy is amended, a new form must be submitted to DOH within 30 days.
As noted, the Department of Health is still working on establishing the process for hospice providers to submit these policies.
Background
In 2008, Washington state voters approved ballot initiative 1000, which established the Death with Dignity Act in Washington State. The Act authorizes qualified, terminally ill, adult patients with a diagnosis of six months or less to live the ability to request and self-administer life ending medication. Since the Act became law, thousands of Washingtonians have participated. According to a Department of Health report delivered to the legislature in 2022, 452 adult Washington state residents participated in the program in that year.
Since passage of the Act, WSHA has provided guidance to hospitals to understand the Act and the options for allowing participation or not allowing participation.
WSHA’s 2023 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 2023 to help members implement the new laws, as well as links to resources such as this bulletin.
References
Chapter 70.245 RCW – Washington State Death with Dignity Act
Substitute Senate Bill 5179 (2023) – Increasing access to the provisions of the Washington death with dignity act.
RCW 70.41.520 – Hospital access to care policies
RCW 70.127.290 – Hospice access to care policies
DOH Hospital Policies Website
DOH Hospital End of Life Services form
DOH Death with Dignity act webpage
2022 Death with Dignity Department of Health report
Washington State Hospital Association Death with Dignity Resources
