New Law Protects Health Care Providers Giving Patients Appropriate, Accurate Information Care and Treatment Options

June 11, 2020

Change of Law: Hospital Action Required

To:                       Chief Medical Officers, Chief Nursing Officers, Rural Chief Executive Officers,
                             Legal Counsel and Government Affairs Staff
                                       
From:                  Sarah Chicoine | Legal Intern | SarahC@wsha.org

Staff Contact:   Zosia Stanley, JD, MHA, Associate General Counsel | ZosiaS@wsha.org | (206) 216-2511

Subject:             New Law Protects Health Care Providers Giving Patients Appropriate, Accurate Information
                            About Care and Treatment Options

Purpose

The purpose of this bulletin is to alert hospitals and health care systems about changes in law related to ESHB 1608, effective June 11, 2020.

ESHB 1608 establishes that health care providers (broadly defined) may provide patients with medically accurate and comprehensive information and counseling, including treatment alternatives and community resources, as long as the provider is acting in good faith and consistent with the provider’s training and knowledge.

This new law requires all health care entities to annually provide educational materials about the law to health care providers about this act. Hospitals must also provide information about the federal emergency medical treatment and labor act law (EMTALA).

When negotiating this legislation, WSHA’s advocacy helped protect current privileging and credentialing processes, maintain the rights of hospitals and health systems to determine what services are appropriate to provide at their institutions and ensure providers offering treatment recommendations protected under the bill act within their appropriate scope of practice. Due to WSHA’s advocacy, the bill passed by the legislature does not include proposed language relating to a private cause of action.

Applicability/Scope

The requirements in ESHB 1608 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.

Recommendations

  1. Review this bulletin and ESHB 1608 to understand the new requirements.
  2. Evaluate current hospital standards and training regarding how providers inform patients of their treatment options, including providing information about relevant resources available in the community.
  3. Evaluate current hospital policies relating to information about Washington’s Death with Dignity Act. 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. 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.
  4. Give health care providers the written materials prepared by the Department of Health about the provisions of the new law. Also provide information to provide clear information about the provisions of EMTALA including obligations to screen, stabilize and transfer patients. WSHA’s EMTALA Fact Sheet contains general information on the law. Both types of information are required to be provided at hiring/contracting and annually to all providers and staff.

Overview

ESHB 1608 includes (1) protections for health care providers and (2) requirements that health care entities provided notice about these protections. Based on 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.”
  • “Medically accurate” means “information that is verified or supported by research in compliance with scientific methods, is published in peer-reviewed journals, where appropriate, and is recognized as accurate and objective by professional organizations and agencies with expertise in the relevant field.”

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 via 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 and knowledge when counseling patients.

  1. Health Care Provider Protections

Pursuant to ESHB 1608, a health care entity may not limit a health care provider from providing patients with appropriate treatment and care information so long as the provider acts in good faith within the provider’s scope of practice, education, training and experience, including specialty areas of practice and board certification, and within the accepted standard of care.

A health care provider acting within the above circumstances cannot be limited from providing:

  • Medically accurate and comprehensive information and counseling to a patient regarding the patient’s health status including, but not limited to, diagnosis, prognosis, recommended treatment, treatment alternatives and any potential risks to the patient’s health or life;
  • Information about available services and about what relevant resources are available in the community and how to access those resources for obtaining the care of the patient’s choice; and
  • Information regarding Washington’s Death with Dignity Act (RCW 70.245), information about what relevant resources are available in the community and how to access those resources for obtaining the care of the patient’s choice.

A health care entity cannot discharge, demote, suspend, discipline or otherwise discriminate against a health care provider for providing the above information if the provider is acting in good faith, within the provider’s scope of practice and accepted standard of care and within the requisite knowledge and education.

  1. Health Care Entity Notice Requirements

Health care entities must provide the below information to health care providers and staff (1) at the time of hiring, contracting with or privileging; and (2) on a yearly basis.

a.  DOH Materials about ESHB 1608: The Department of Health 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 to act under, ESHB 1608. Health care entities, including hospitals, must provide the DOH materials to all health care providers.

              Note: DOH has not yet provided the required written materials. WSHA will update hospitals and health systems when these materials are available.

b.  Information about EMTALA: Hospitals must also provide information to clearly inform health care providers and staff of the provisions of EMTALA, including obligations to screen, stabilize, and transfer patients. Hospitals may consider using WSHA’s EMTALA Fact Sheet for general information. Health care providers who provide emergency department services should receive more in-depth training.

Background

  1. EMTALA

The Emergency Medical Treatment and Active Labor Act, otherwise known as the “anti-dumping law,” is a federal law enacted in 1986.  Its goal is to ensure no one suffers harm from a medical condition because they do not have insurance coverage or money to pay for their care.  EMTALA creates obligations for any hospital participating in Medicare and has an emergency department. EMTALA requires hospitals to medically screen every patient who “comes to the emergency department” and to stabilize or transfer patients with medical emergencies, regardless of the patient’s ability to pay.

If a hospital does not have the capability to stabilize the patient’s medical condition, EMTALA allows for an “appropriate” transfer to another hospital that has more specialized capabilities. EMTALA requires specific circumstances and processes for transferring patients, particularly when the patient has not yet been stabilized. Both CMS and the OIG enforce EMTALA and violations lead to substantial civil liability, termination from participation in Medicare and a private right of action of patients.

“Comes to the emergency department” as used in EMTALA includes:

  • An individual who comes to the hospital property as a whole, requesting examination or treatment for what may be an emergency medical condition; and
  • An individual who is in a ground or air ambulance owned and operated by the hospital that is charged with bringing patients to the EMTALA obligated hospital. (42 C.F.R. 489.24(b))

In brief summary, EMTALA requires hospitals to:

  1. Provide a medical screening exam to any individual who comes to the emergency department;
  2. Stabilize the individual if they are determined to have an “emergency medical condition” as defined in the law; and
  3. Either treat the individual at the hospital or transfer the individual to another medical facility once stabilized. If the hospital is unable to stabilize the patient within its capability, the hospital may, following specific statutory requirements, transfer the patient to another facility before stabilizing.

EMTALA is a complex law with a significant amount of case law and agency interpretation. Hospitals are encouraged to consult with legal counsel about specific circumstances and when developing materials used to educate hospital providers and staff.

  1. Department of Health Materials

ESHB 1608 requires the Department of Health to design, prepare and make available online written materials to inform health care providers and staff about the requirements required under this bill. ESHB 1608 also requires the Department of Health to create and make available information for providers and patients about Washington’s Death with Dignity Act.

Although health care entity’s obligations under ESHB 1608 are effective as of June 11, 2020, DOH has not yet made these materials available. WSHA will update members once the DOH materials are available.

WSHA’s 2020 New Law Implementation Guide

Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on 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.

References

Engrossed Substitute House Bill 1608—An Act Protecting Health Care Providers Ability to Inform Patients of Treatment Alternatives
42 U.S.C. Sec. 1395dd —EMTALA Statute
42 C.F.R. Sec 489.24 —EMTALA Regulations
WSHA EMTALA Fact Sheet —Two-page summary overview of EMTALA obligations
RCW 70.245 – Washington State Death with Dignity Act
RCW 7.70.065 —Washington State informed consent law

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