|To:||Hospital CEOs, Chief Medical Officers, Human Resources, Risk Management, Legal|
Cara Helmer, JD, RN, Policy Director, Legal Affairs
|Subject:||Changes to Washington Physician’s Health Program in SB 5496|
The purpose of this bulletin is to inform hospitals of the updates to the Washington Physician’s Health Program’s enabling statute made by Senate Bill 5496, during the 2022 legislative session. The changes, detailed below, add new confidentiality protections for treatments for impairments other than substance use disorders. The amended statute furthermore provides a narrow confidentiality exception – successfully advocated for by WSHA: For certain WPHP records, this exception applies when a hospital is sued in an employment action by a former employee who has failed to successfully complete the WPHP program.
These changes apply broadly to all hospitals and clinics who may refer providers to the Washington Physician’s Health Program including all hospitals licensed under RCW 70.41 and RCW 71.12.
SB 5496 updates the Washington Physicians Health Program’s (WPHP) enabling statute by adding treatment services and providing new confidentiality protections for impairments separate from substance use disorders. These additions recognize the many non-substance use related impairments for which providers seek treatment. The amendments also allow providers to seek treatment for a range of health issues without losing their licenses. Treatment records that do not fall within the original enabling statute’s parameters of “substance abuse” are now also officially protected.
In most circumstances, program records relating to license holders are confidential, exempt from disclosure under chapter 42.56 RCW, and not subject to discovery by subpoena or admissible as evidence. SB 5496 creates two exceptions to this confidentiality rule, listed below. Based on feedback from member hospitals WSHA advocated for the first of these two exceptions.
- The first exception exists in the case of a civil action by a health care professional regarding the restriction or revocation of their clinical or staff privileges, or termination of their employment by the hospital. If either the health care professional or the hospital issues a subpoena requesting WPHP records and the other party files a protective order, to argue that the records should not be disclosed, WPHP will provide:
- verification of the health care professional’s participation in the physician health program or voluntary substance use disorder monitoring program and the participation dates;
- information on whether the program identified an impairing or potentially impairing health condition;
- information on whether the health care professional complied with the requirements of the physician health care program or voluntary substance use disorder monitoring program; and
- confirmation as to whether the health care professional successfully completed either program.
- The second applies when a physician either does not consent to the referral to a physician health program or voluntary substance use disorder monitoring program or fails to meet the program requirements. At the disciplining authority’s request, the program must release the applicable records. Records held by the disciplining authority are exempt from public disclosure and are not subject to discovery by subpoena except by the license holder.
The Washington Physician’s Health Program allows “anyone with a concern” to refer a physician for care. WPHP then provides early intervention, assessment, and treatment for such health professionals “who may not be able to practice safely due to an impairing or potentially impairing health condition.” The program offers these treatment services, while allowing the health professionals to remain in practice. However, if the provider does not consent to the referral or fails to meet the requirements of the program, the disciplining authority may move forward with formal disciplinary action.
As noted above, treatment and pre-treatment records for providers who are referred to or voluntarily participating in the approved programs are confidential and exempt from public disclosures. They are not subject to discovery by subpoena or admissible as evidence except where the requesting party seeks a protective order or for monitoring records reported to the disciplining authority for cause. Monitoring records relating to license holders referred to the program by the disciplining authority by the program for cause must be released to the disciplining authority at the disciplining authority’s request.
Individuals who report information or take action in connection with these health programs are granted civil immunity for such reports or actions. Entities and individuals entitled to such immunity include: an approved monitoring treatment program; the professional association operating the program; members, employees, or agents of the program or association; persons reporting a license holder as being possibly impaired or providing information about the license holder’s impairment; and professionals supervising or monitoring the course of the impaired license holder’s treatment or rehabilitation.
The changes made by SB 5496 were necessary because, although WPHP provides a wide range of services, the enabling statute limited confidentiality to substance use disorders. SB 5496 expands that confidentiality to all the services that WPHP offers, and to all the providers it serves. That said, it is essential that employers have some protection themselves. WSHA successfully worked with WPHP in advance of legislative session to ensure that hospitals would have an exception for limited access in the case of an employment action by employees that fail to complete the WPHP program. This allows for providers to receive the care they need without putting hospitals at risk. WSHA appreciates this type of early collaborative work with partner organizations, which in this case made it possible to support the bill through its entire legislative journey.
WSHA’s 2022 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 2022 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 release of upcoming resources on other laws and additional resources for implementation.