WSR 17-09-022 PROPOSED RULES DEPARTMENT OF HEALTH [Filed April 11, 2017, 12:59 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 16-23-057.
Title of Rule and Other Identifying Information: WAC 246-827-0010 Definitions and 246-827-0430 Forensic blood draws—Standards of practice (new). The department of health (department) is proposing amending the medical assistant (MA) rules to add a definition of "forensic blood draw" and establish a new section regarding statutorily authorized forensic blood draws—Standards of practice for the purpose of collecting evidence.
Hearing Location(s): Department of Health, Town Center 2, Room 145, 111 Israel Road S.E., Tumwater, WA 98501, on May 23, 2017, at 1:30 p.m.
Date of Intended Adoption: May 30, 2017.
Submit Written Comments to: Brett Cain, P.O. Box 47852, Olympia, WA 98504-7852, email https://fortress.wa.gov/doh/policyreview, fax (360) 236-2901, by May 23, 2017.
Assistance for Persons with Disabilities: Contact Cece Zenker at (360) 236-4633, by May 15, 2017, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The governor vetoed a section of a 2015 bill that would have created a forensic phlebotomist credential for law enforcement personnel to perform blood draws on DUI suspects. Since the department already issues a phlebotomist credential, the veto message directed the department to work with interested parties to develop options within existing regulations. In response to the governor's direction and a rule petition, the department is proposing adding "forensic blood draws" to the definitions section of the MA rules and creating a new section that (1) states that a MA-phlebotomist or MA-certified may perform forensic blood draws; (2) that the draw must be performed in accordance with established standard of practice; (3) refers to statutes exempting the MA from criminal or civil liability if the draw is performed under certain conditions; and (4) clarifies supervision requirements for the draws.
Reasons Supporting Proposal: The proposed rules are intended to provide clarification, references, and information for people who perform, are considering performing, or work with people who perform forensic blood draws. The proposed rules were drafted in cooperation with several stakeholder groups who agree that the proposal accomplishes this intent.
Statute Being Implemented: RCW 18.360.040.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of health, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Brett Cain, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4766.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule would not impose more than minor costs on businesses in an industry.
A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis is not required but has been prepared voluntarily as allowed under RCW 34.05.328. To obtain a copy of the analysis, contact Brett Cain, Medical Assistant Program, Department of Health, P.O. Box 47850 [47852], Olympia, WA 98504, phone (360) 236-4766, fax (360) 236-2901, email brett.cain@doh.wa.gov.
April 11, 2017
John Wiesman, DrPH, MPH
Secretary
AMENDATORY SECTION (Amending WSR 13-12-045, filed 5/31/13, effective 7/1/13)
WAC 246-827-0010 Definitions.
The following definitions apply throughout this chapter unless the context clearly indicates otherwise:
(1) "Direct visual supervision" means the supervising health care practitioner is physically present and within visual range of the medical assistant.
(2) "Forensic blood draw" means a blood sample drawn at the direction of a law enforcement officer for the purpose of determining its alcoholic or drug content by a person holding one of the credentials listed in RCW 46.61.506, including a medical assistant-certified or medical assistant-phlebotomist.
(3) "Health care practitioner" means a physician licensed under chapter 18.71 RCW; an osteopathic physician and surgeon licensed under chapter 18.57 RCW; or acting within the scope of their respective licensure, a podiatric physician and surgeon licensed under chapter 18.22 RCW, a registered nurse or advanced registered nurse practitioner licensed under chapter 18.79 RCW, a naturopath licensed under chapter 18.36A RCW, a physician assistant licensed under chapter 18.71A RCW, an osteopathic physician assistant licensed under chapter 18.57A RCW, or an optometrist licensed under chapter 18.53 RCW.
(((3))) (4) "Hemodialysis" is a procedure for removing metabolic waste products or toxic substances from the human body by dialysis.
(((4))) (5) "Immediate supervision" means the supervising health care practitioner is on the premises and available for immediate response as needed.
(((5))) (6) "Legend drug" means any drug which is required by any applicable federal or state law or regulation to be dispensed on prescription only or is restricted to use by practitioners only.
(((6))) (7) "Medical assistant" without further qualification means a person credentialed under chapter 18.360 RCW as a:
(a) Medical assistant-certified;
(b) Medical assistant-registered;
(c) Medical assistant-hemodialysis technician; and
(d) Medical assistant-phlebotomist.
(((7))) (8) "Medical assistant-hemodialysis technician" means a patient care dialysis technician trained in compliance with federal requirements for end stage renal dialysis facilities.
(((8))) (9) "Secretary" means the secretary of the department of health or the secretary's designee.
NEW SECTION
WAC 246-827-0430 Forensic blood draws—Standards of practice.
(1) Any medical assistant-certified or medical assistant-phlebotomist certified under this chapter who performs a forensic blood draw must do so in accordance with the rules governing delegation and supervision in WAC 246-827-0110 and 246-827-0420, as well as the standards of practice for a medical assistant in Washington state. Forensic blood draws are not limited to specific settings and must comply with the standards of practice described in this section.
(2) A medical assistant-phlebotomist or medical assistant-certified meets the supervision requirements to perform a blood draw at the direction of a law enforcement officer if either:
(a) The medical assistant's supervising health care practitioner delegates the blood draw; or
(b) The blood draw is performed under the supervising health care practitioner's protocol for blood draws as provided in RCW 18.360.060.
(3) As provided in RCW 18.130.410, it is not professional misconduct for a medical assistant-certified or medical assistant-phlebotomist to collect a blood sample without consent under direction of law enforcement pursuant to a search warrant or under exigent circumstances; however, nothing relieves a medical provider from professional discipline arising from the use of improper procedures or from failing to exercise the required standard of care.
(4) RCW 46.61.508 sets forth the circumstances under which medical assistants-certified and medical assistants-phlebotomist are immune from civil and criminal liability when conducting a lawful forensic blood draw at the direction of a law enforcement officer. This protection does not extend to civil liability arising from the use of improper procedures or failing to exercise the required standard of care.
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