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To: Chief Executive Officers, Chief Financial Officers, Chief Operating Officers, Government Relations Staff, Public Relations, Legal Counsel, and Chief Nursing Officers
From: James McMahan, Policy Director, Washington Association of Sheriffs and Police Chiefs
Candice Bock, Government Relations Advocate, Association of Washington Cities
Andrew Busz, Policy Director, Finance, Washington State Hospital Association
WSHA Contact: Andrew Busz, firstname.lastname@example.org or (206) 216-2533
Subject: Implementing Senate Bill 5593 – Delivery and Payment for Health Care Services by Hospitals for Inmates and Persons Detained by Law Enforcement
This bulletin is intended to inform you of important changes in Washington state law as a result of enactment of Senate Bill 5593. The bill addresses two issues related to care for people in law enforcement custody: guarding and payment. First, on guarding, the bill requires that when law enforcement accompanies patients who are in custody for a violent offense or a sex offense into the hospital, law enforcement must continue to accompany or secure the patient, except in certain situations. Second, on payment, it establishes a default payment rate for services that are the responsibility of the law enforcement jurisdiction (in the absence of a negotiated agreement between the hospital and the law enforcement jurisdiction).
Senate Bill 5593 affects all hospitals and law enforcement agencies in the state. The law became effective July 24, 2015.
Hospitals and law enforcement entities should familiarize themselves with the law in its entirety to understand the changes in requirements for law enforcement and impact on hospital operations, as well as understand the potential changes in payment under the law. We recommend hospitals meet with their local law enforcement entities to discuss how the provisions of the law will be implemented. The bill was enacted in a collaborative manner at the state level as a partnership between the Washington State Hospital Association, the Washington Association of Sheriffs and Police Chiefs, and the Association of Washington Cities. We would like to see that same collaboration around the bill’s implementation at the local level.
Key Provisions: Guarding
People who are in police or jail custody sometimes need hospital care. When a violent suspect or convict is in the hospital, there could be a risk of injury to other patients and staff. This law seeks to ensure staff and patient safety.
Any individual in custody for a violent offense or a sex offense, as those terms are defined inRCW 9.94A.0307, who is brought by, or accompanied by, an officer to a hospital must continue to be accompanied or otherwise secured by an officer during the time that the individual is receiving care at the hospital, with some exceptions.
Definitions of Violent and Sexual Offenses
Under the RCW, “violent offense” is defined as:
- Any of the following felonies:
- Any felony defined under any law as a class A felony or an attempt to commit a class A felony;
- Criminal solicitation of or criminal conspiracy to commit a class A felony;
- Manslaughter in the first degree;
- Manslaughter in the second degree;
- Indecent liberties if committed by forcible compulsion;
- Kidnapping in the second degree;
- Arson in the second degree;
- Assault in the second degree;
- Assault of a child in the second degree;
- Extortion in the first degree;
- Robbery in the second degree; and
- Drive-by shooting
- Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner;
- Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;
- Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense; and
- Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense.
Under the RCW “sexual offenses” are defined as: A felony that is a violation of chapter 9A.44 RCW (which includes rape, child molestation, sexual misconduct, indecent liberties, custodial sexual misconduct, and criminal trespass against children) and also includes:
- A violation of RCW 9A.64.020;
- A felony that is a violation of chapter 9.68A RCW (sexual exploitation of children);
- A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;
- A felony violation of RCW 9A.44.132 (1) (failure to register as an offender) if the person has been convicted of violating RCW 9A.44.132 (1) (failure to register as an offender) on at least one prior occasion;
- Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense;
- A felony with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135; or
- Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense.
Exceptions to the Guarding Requirement
The officer determines, using his or her best judgment:
- The individual does not present an imminent and significant risk of causing physical harm to themselves or another person;
- There is no longer sufficient evidentiary basis to maintain the individual in custody; or
- In the interest of public safety, the presence of the officer is urgently required at another location and the officer determines, using his or her best judgment and in consultation with his or her supervisor, if available on duty, that the public safety interest outweighs the need to accompany or secure the individual in the hospital. In such cases the law enforcement entity must make a reasonable effort to provide a replacement officer when able to do so.
Key Provisions: Notification, Information, Triage, and Liability
Notifications to Law Enforcement:
Where a health care provider declines law enforcement presence. The law provides that if the medical care provider determines the individual need not be accompanied or secured, that the officer has no ongoing duty. However, two additional provisions apply:
- The hospital must notify the officer or the officer’s designee when the individual is expected to be released by the hospital, and
- The medical provider may request the presence of an officer to guard or accompany an individual if, later, the individual demonstrates behavior that presents an imminent and significant risk of causing physical harm. (For example, a previously incapacitated patient is recovering and now feels threatening.)
Where a law enforcement officer decides to leave because the patient does not need guarding. If an officer determines the individual does not need to be accompanied or secured because, in the officer’s judgment, there is not an imminent and significant risk of physical harm or there is no longer a sufficient evidentiary basis to maintain the individual in custody:
- The officer must notify the medical care provider; and
- The hospital is not required to notify law enforcement when the individual is released from the hospital.
Where a law enforcement officer must leave because he or she is urgently required elsewhere. If an officer is urgently required to leave, he or she must make an attempt to notify the medical provider or another staff member and make an effort to find a replacement officer. Hospitals, in this case, are obligated to notify law enforcement when the patient is being discharged.
Disclosure of Health Care Information:
A frustration that law enforcement officers expressed is that patient privacy laws sometimes required them to leave the room when the patient was being treated, the patient would assault the medical staff, and another charge would then be filed against the patient. The bill, therefore, makes an important change to the uniform health care information act (RCW 70.02). It allows disclosure of health care information to any law enforcement officer, corrections officer, or guard supplied by a law enforcement or corrections agency who is accompanying a patient pursuant to this act, only to the extent the disclosure is incidental to the fulfillment of the role of the law enforcement officer, corrections officer, or guard. The law enforcement officer is not permitted to read the patient’s medical record or in any other way discover more information than occurs in the course of their guarding. We believe this will enhance safety, as the officer would not be required to leave if the patient’s health status is discussed. The WSHA “Hospital and Law Enforcement Guide to Disclosure of Protected Health Information” will be updated to reflect this change.
Triage and Expeditious Treatment:
It is important that law enforcement officers be allowed to return to their public safety duties as quickly as possible. Under the law, when an individual is accompanied or otherwise secured by an officer, the hospital shall see the individual in as expeditious a manner as possible. The hospital is directed to take into consideration best triage practices and federal and state legal obligations regarding appropriate screening and treatment of patients. What this means in practical terms is that if the law enforcement patient has a broken arm and the hospital has another patient waiting also with a broken arm, the law enforcement patient goes first. If the law enforcement patient has a broken arm and another patient has a heart attack, the law enforcement patient will wait.
The law provides that other than gross negligence or willful misconduct, the hospital and health care providers, as well as law enforcement, are immune from liability.
Key Provisions: Payment for Services
There has been no standard payment rate for services paid for by law enforcement agencies, which often results in financial uncertainty for both the hospital and law enforcement in the absence of a negotiated agreement. Law enforcement agencies were seeking predictability and transparency in the payments they would be expected to make on behalf of those in their custody. The bill provides a default payment for hospital services based on the Percent of Allowed Charge (POAC) rates established for each facility by the Department of Labor and Industries.
The bill amends RCW 70.48.130, which governs the financial responsibility for medical services among providers, governing units (which includes city, county, and regional jails and law enforcement), and the state Medicaid program. The payment provisions do not apply to services to inmates that are the responsibility of the State Department of Corrections. Payment for inmates of the Department of Corrections is separately addressed in RCW 72.10.030.
The hospital must accept as payment in full, from the law enforcement agency, the facility’s percent of allowed charge (POAC) rate or applicable fee schedule as determined by the Washington State Department of Labor and Industries, unless other rates have been agreed to by the law enforcement unit and the hospital. This applies to all inpatient, outpatient, and ancillary services provided to a confined person by a hospital licensed under chapter 70.41. The hospital should continue to bill its regular billed charges for these services, and make appropriate adjustment once payment has been received from the law enforcement agency, based on either the POAC rates, or if a contractual agreement exists, the contracted rates.
The provisions apply only to services provided by a hospital, and do not apply to professional or other services provided and billed by providers that do not fall under the hospital’s license. Also, if there is an agreement between the hospital and the law enforcement agency for another payment method, that arrangement may stand.
L&I Percent of Allowed Charge and Fee Schedule
The Labor and Industries Percent of Allowed Charge (POAC) Rate and Fee Schedule was agreed upon for these services as they provide a generally fair payment rate for both the hospital and governing unit, particularly for what often is an irregular mix and volume of services. The POAC rates and schedule have the advantage of being relatively simple to administer and a system that is familiar to many law enforcement agencies. The bill references the rates and methodology already required and used by self-insured entities and employers in the state for Worker’s Compensation medical claims, either directly by the entity or through their third party administrator. The rates are maintained on the Labor and Industries website and current rates can be found here.
While the L&I rates are applicable as payment in full in the absence of an agreement for inmates and suspects in custody, no other L&I-specific billing, utilization management, or benefit requirements apply to these services when requested by the governing unit or the law enforcement entity.
Services to Medicaid Enrollees
The provisions do not apply to services that are paid through the Medicaid program. As a result of Medicaid eligibility expansion, many more people in law enforcement custody qualify for Medicaid. WSHA has worked with law enforcement agencies to expand Medicaid enrollment. Therefore, an increasing amount of services, primarily inpatient, will be payable under the Medicaid program rather than by the law enforcement agency. Most outpatient services will remain ineligible for Medicaid payment while the patient is in custody, even if enrolled in Medicaid. WSHA encourages hospitals to assist local law enforcement with the Medicaid enrollment process for eligible inmates and suspects. All patients will be better served by having a stable system of insurance and there is evidence that recidivism could decline if people have access to necessary health services, particularly mental health and substance abuse services.