Change of Law: Hospital Action Required
To: Chief Executive Officers, Chief Medical Officers, General Counsel and Government Affairs staff
From: Taya Briley, EVP and General Counsel | tayab@wsha.org, 206-216-2554
Subject: Effective July 28, 2019, changes to Whistleblower Protections and Peer Review Law
Purpose
The purpose of this bulletin is to inform you of an expansion of the state’s whistleblower law. Individuals qualify as “whistleblowers” by reporting to the Department of Health, or initiating, participating or cooperating in investigations which raise quality of care concerns. These whistleblowers are now protected against “reprisal or retaliatory action” taken against them in the peer review process so long as their actions are taken in good faith.
WSHA mitigated the impact of this bill by ensuring that peer review bodies that follow required legal steps will have immunity for engaging in a proper peer review disciplinary process.
Applicability/Scope
The requirements apply to hospitals licensed under chapter 70.41 RCW and psychiatric hospitals licensed under chapter 71.12 RCW. Non-hospital health care facilities, including ambulatory surgical facilities and nursing homes are also subject to the law.
Recommendation
WSHA strongly encourages its members to ensure they are following state and federal requirements concerning due process in peer review and to not engage in “reprisal or retaliatory action” against a whistleblower who takes good faith actions, which are protected under the law, to express quality of care concerns. Ensuring proper process is followed is the best way to avoid penalties under the bill.
Overview
Substitute House Bill 1049, amending RCW 43.70.075 and adding a new section to chapter 70.71 RCW, was unanimously approved by both chambers of the legislature and signed into law by Governor Inslee. It is effective on July 28, 2019. It has been championed by supporters as a way to ensure health care providers are not penalized through the peer review process for raising quality of care concerns, including through a complaint made to the Washington State Department of Health.
WSHA initially had concerns about the bill, which was advanced by the Washington State Medical Association. In a case where an individual was subject to potential action by a peer review body the individual could, under the bill as originally drafted, make a complaint about “quality of care concerns” and thereby prevent a hospital from taking action for fear the action would be characterized as a “reprisal or retaliatory action” triggering penalties or a lawsuit. After negotiations and modifications to the bill to address this concern, WSHA has been neutral.
Extension to independent contractors, including medical staff. The bill expands existing law providing whistleblower protections to individuals who express quality of care concerns. Under the amended law, a “whistleblower” is defined as:
[A] consumer, employee or health care professional, including a member of the medical staff, who “in good faith reports alleged quality of care concerns to the department of health or initiates, participates, or cooperates in an investigation or administrative proceeding” under the law.
Reprisal or retaliatory action now includes adverse peer review actions. Under existing law, whistleblowers are protected against “reprisal or retaliatory action.” This definition is now expanded to include, “revocation, suspension, or reduction of medical staff membership or privileges without following a medical staff sanction process that is consistent” with Washington State and federal law on peer review process.
Follow existing peer review legal process under state and federal law. One of the main successes of WSHA’s advocacy on the bill was preservation of protections for hospitals and health systems when they follow state and federal law on peer review process. While “reprisal or retaliatory action” now includes adverse actions taken through the peer review process, immunity is provided to the peer review body if the required peer review process steps are followed. An appropriately constructed peer review process is a crucial tool for compliance with the new law.
Washington State’s hospitals must follow RCW 70.41.200(1)(b) relating to medical staff privilege sanctions. Hospitals must also follow the federal Health Care Quality Improvement Act at 42 USC Sec. 11112, which states in part:
(a) IN GENERAL. For purposes of the protection set forth in section 11111(a) of this title, a professional review action must be taken—
(1) in the reasonable belief that the action was in the furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).
If the steps are taken…
(A) the professional review body,
(B) any person acting as a member or staff to the body,
(C) any person under a contract or other formal agreement with the body, and
(D) any person who participates with or assists the body with respect to the action,
… shall not be liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to the action.
Remedies now available to non-employees. If a whistleblower establishes a violation has occurred and the protections described above are not triggered, the law allows a non-employee whistleblower to initiate a civil action to enjoin further violations and recover actual damages, including attorneys fees. Attorneys fees may be awarded to the respondent (hospital) if the court finds the respondent did not engage in a reprisal or retaliatory action and the complaint was frivolous, unreasonable, or groundless. Under existing law employees are allowed to seek remedies provided under the state’s Law Against Discrimination found at chapter 49.60 RCW.
Next Steps
Hospitals and health systems should:
- Review internal processes for employees and independent medical staff and other contractors to raise quality concerns. Is there a path to quickly engage and respond to concerns that are raised? An effective internal process will increase the changes an individual raising quality concerns feels heard and reduce the chances he or she will initiate the complaint process.
- Review peer review procedures. Ensure the peer review body is properly constituted in accordance with RCW 70.41.200(1)(b) and that in an action against a health care provider all steps required by 42 USC Sec. 11112 are taken. These steps will ensure that if disciplinary action is taken the peer review body is protected.
Background and References
House Bill 1049
RCW 70.41.200(1)(b)
42 USC Sec. 1111 and 11112
RCW 43.70.075
