To: CEOs, CFOs, CNOs, Legal, Risk, Compliance, Government Affairs Staff
Staff Contact: Cara Helmer, JD, RN, Policy Director, Legal Affairs, CaraH@wsha.org | (206) 577-1827
Subject: DOH Finalizes Acute Care Hospital Fine Matrix Rule
This bulletin informs acute care hospitals that the Department of Health’s (DOH or department) final rule on acute care hospital fines, implementing 2SHB 1148, will go into effect on January 20, 2023. After that date, DOH may use the fine matrix in WAC 246-320-013 to fine acute care hospitals, licensed under 70.41 RCW, as a method of licensing enforcement.
In 2021, the Washington State Legislature passed 2SHB 1148, which expanded DOH’s oversight and enforcement of acute care hospitals. This followed the passage of a similar bill in 2020, SHB 2426, which expanded DOH’s oversight and enforcement of freestanding psychiatric hospitals. You can read more about the acute care hospital legislation in WSHA’s bulletin about it here; the WSHA bulletin related to the freestanding psychiatric hospital legislation can be found here.
The fine matrix developed in this rulemaking is very similar to the one developed for freestanding psychiatric hospitals, which can be found in WAC 246-322-025. Both matrices consider the severity and the scope of the violation in determining the amount of the fine. However, given the varying sizes of acute care hospitals in Washington, WSHA successfully lobbied to ensure the acute care fine matrix also considers the size of the hospital in setting fine amounts.
This new rule affects acute care hospitals licensed under 70.41 RCW. It describes when DOH may assess a fine against an acute care hospital and provides a fine matrix that governs the amount of fine.
Recommendations and Next Steps
- Review this bulletin and share it with the appropriate staff.
- Review the new rules under WAC 246-320-013.
- Review WSHA’s bulletin on HB 1148 to understand the DOH’s new enforcement and oversight tools.
WAC 246-320-013 describes when and how DOH may levy fines against acute care hospitals. The rule provides graduated fine amounts based on (1) the scope of the violation, (2) the severity of the violation, and (3) the size of the hospital. An acute care hospital may appeal a fine in accordance with RCW 43.70.095.
WSHA and a workgroup of members actively participated in the DOH rulemaking process during the development of this fine matrix. WSHA provided regulatory language and recommendations to DOH during both the CR 101 and CR 102 phases of the rulemaking process, as well as testifying at the CR 102 hearing. WSHA is pleased that much of our feedback is reflected in the final rule.
Circumstances under which a hospital may be fined
Consistent with 2SHB 1148, the rules provide that DOH may assess a fine under three circumstances:
- The hospital has previously been subject to an enforcement action for the same or similar type of violation of the same statute or rule.
- The hospital has been given any previous statement of deficiency that included the same or similar type of violation of the same or similar statute or rule.
- The hospital failed to correct noncompliance with a statute or rule by a date established or agreed to by the department.
Determination of fine amounts
The fine amounts are determined based on three factors: (1) the severity of the violation; (2) the scope of the violation; and (3) the operation size and number of licensed beds in the hospital.
Severity of the violation
The rule provides three levels of severity of a potential violation: “low,” “moderate,” or “high.” The higher the severity, the higher the resulting fine. The rule provides definitions to guide DOH in assessing the level of severity of any given violation. Please see the rule for more specific language, but generally:
- A low severity violation is one in which harm could happen, but would be rare.
- A moderate severity violation means harm could happen occasionally.
- A high severity violation is one where harm could happen at any time or did happen.
The rule also provides five factors the department will consider when determining the severity of the violation, including whether harm to the patient(s) occurred or could occur; the impact of the actual or potential harm on the patient(s); and whether a previous fine at lower severity was levied for a related violation.
Scope of the violation
DOH must also determine the scope of the violation: whether it is “limited,” “pattern,” or “widespread.” Again, the more extensive the violation, the higher the fine. The rule provides definitions to guide DOH in assessing the scope of any given violation. Please see the rule for more specific language, but generally:
- A limited violation is an outlier where only one or a very limited number of patients are affected or one or a very limited number of staff are involved.
- A pattern violation is a process variation, where a very limited number of patients are affected or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same patient(s) have been affected by repeated occurrences.
- A widespread violation is a process failure, where the entire organization, not just a subset of patients or one unit are affected.
DOH will also consider the time that has passed between similar violations, up to a maximum of two prior survey cycles, when determining the scope of a violation.
Size of the hospital
The amount of the fine is also dependent on the size of the hospital based on “operation size” and number of licensed beds. “Operation size” is not defined, but based on conversations with the department, WSHA anticipates that it will take into account financial information that is reported to the department on an annual basis. There are three different fine matrices. The first covers hospitals from 0-99 licensed beds. The second covers hospitals from 100-299 licensed beds. The third covers hospitals that have 300+ beds. “Operation size” will also be considered when assessing the fine. Finally, the rule allows the department to assess a higher fine than the maximum allowed in the matrices, not to exceed the statutory cap of $10,000 per violation, if it determines that the maximum matrix amount would not be sufficient to deter future noncompliance.
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.
 WAC 246-320-013 also provides how and when DOH may deny, suspend, modify, or revoke a license under 70.41 RCW, but that language was simply moved from WAC 246-320-011 and was not modified.