H-1612

AN ACT Relating to nonphysician health practitioners; amending RCW 70.43.020, 70.43.030, 70.170.070, and 74.09.522; adding new section to chapter 70.41 RCW; adding a new section to chapter 70.58 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 70.41 RCW to read as follows:

(1) For the purpose of this section, "health practitioner" means a family nurse practitioner, women's health care nurse practitioner, pediatric nurse practitioner, adult nurse practitioner, nurse midwife, or nurse anesthetist licensed under the authorization of the Washington state board of nursing pursuant to chapter 18.88 RCW, and, effective January 1, 1993, a midwife licensed pursuant to chapter 18.50 RCW.

(2) After December 31, 1991, it is unlawful for any hospital licensed under this chapter, except a hospital that directly employs its medical staff, to prohibit a health practitioner from being accorded clinical privileges and appointed to all categories of staff membership if the hospital offers health services that can be performed by the health practitioner within the scope of her or his practice and consistent with standards set forth in subsection (3) of this section.

If a health practitioner submits a completed application for staff membership or clinical privileges to a hospital, the hospital has one hundred twenty calendar days to grant or deny the application. No hospital may deny such an application, terminate or reduce the rights and responsibilities attending the staff membership of a health practitioner, or reduce, suspend, revoke, or refuse to renew his or her clinical privileges, without providing the following minimum procedural protection:

(a) A contemporaneous written explanation containing the explicit reasons for taking the action;

(b) Reasonable advance notice of the right to a fair hearing that would afford the applicant an opportunity to adequately prepare a rebuttal to the stated reasons for the action;

(d) The right to have retained counsel present at the hearing if the hospital is represented by counsel at the hearing;

(e) A written decision containing the explicit reasons for taking the action and substantially based on the evidence produced at the hearing; and

(f) Access to a complete record documenting all preliminary and final decisions and proceedings related to the decisions.

(3) Clinical privileges shall be determined on an individual basis and commensurate with an applicant's education, training, experience, demonstrated current competence, and within her or his scope of practice. In implementing these criteria, each hospital shall formulate and apply reasonable, nondiscriminatory standards for the evaluation of an applicant's credentials as it would with other health professionals. As part of its overall responsibility for the operation of a hospital, the governing body, or designated persons so functioning, shall ensure that decisions on clinical privileges and staff membership are based on an objective evaluation of an applicant's credentials, free of anticompetitive intent or purpose. Whenever possible, the credentials committee and other staff who evaluate and determine the qualifications of applicants for clinical privileges and staff membership shall include members of the applicant's profession.

The following are not valid factors for consideration in the determination of qualifications for staff membership or clinical privileges:

(a) An applicant's membership or lack of membership in a professional society or association;

(b) An applicant's decision to advertise, lower fees, or engage in other competitive acts intended to solicit business;

(c) An applicant's participation in prepaid group health plans, salaried employment, or any other manner of delivering health services on other than a fee-for-service basis;

(d) An applicant's support for, training of, or participation in a private group practice with members of a particular class of health professional;

(e) An applicant's practices with respect to testifying in malpractice suits, disciplinary actions, or any other type of proceeding; and

(f) An applicant's willingness to send a certain number of patients or clients who are in need of hospital services to a particular hospital.

Each hospital shall formulate procedures to ensure that the foregoing factors play no part when decisions regarding clinical privileges and staff membership are made. In any action brought by an individual against a hospital regarding a determination of clinical privileges or staff membership, the hospital shall have the burden of proving that none of these considerations were a factor in the determination.

Sec. 2. RCW 70.43.020 and 1986 c 205 s 2 are each amended to read as follows:

The governing body of any hospital, except any hospital which employs its medical staff, in considering and acting upon applications for staff membership or professional privileges within the scope of the applicants' respective licenses, shall not discriminate against a qualified person solely on the basis of whether such person is licensed under chapter((s)) 18.71, 18.57, or 18.22 RCW, or chapter 18.88 or 18.50 RCW as provided in section 1 of this act.

Sec. 3. RCW 70.43.030 and 1986 c 205 s 3 are each amended to read as follows:

Any person who is aggrieved may apply to superior court for a preliminary or permanent injunction restraining a violation of RCW 70.43.010 ((or)), 70.43.020, or section 1 of this act. This action is an additional remedy not dependent on the adequacy of the remedy at law. Nothing in this chapter shall require a hospital to grant staff membership or professional privileges until a final determination is made upon the merits by the hospital governing body.

Sec. 4. RCW 70.170.070 and 1989 1st ex.s. c 9 s 507 are each amended to read as follows:

(1) Every person who shall violate or knowingly aid and abet the violation of RCW 70.170.060 (5) or (6), 70.170.080, ((or)) 70.170.100, or section 1 of this act, or any valid orders or rules adopted pursuant to these sections, or who fails to perform any act which it is herein made his or her duty to perform, shall be guilty of a misdemeanor. Following official notice to the accused by the department of the existence of an alleged violation, each day of noncompliance upon which a violation occurs shall constitute a separate violation. Any person violating the provisions of this chapter may be enjoined from continuing such violation. The department has authority to levy civil penalties not exceeding one thousand dollars for violations of this chapter and determined pursuant to this section.

(2) Every person who shall violate or knowingly aid and abet the violation of RCW 70.170.060 (1) or (2) or section 1 of this act, or any valid orders or rules adopted pursuant to such section, or who fails to perform any act which it is herein made his or her duty to perform, shall be subject to the following criminal and civil penalties:

(a) For any initial violations: The violating person shall be guilty of a misdemeanor, and the department may impose a civil penalty not to exceed one thousand dollars as determined pursuant to this section.

(b) For a subsequent violation of RCW 70.170.060 (1) or (2) or section 1 of this act within five years following a conviction: The violating person shall be guilty of a misdemeanor, and the department may impose a penalty not to exceed three thousand dollars as determined pursuant to this section.

(c) For a subsequent violation with intent to violate RCW 70.170.060 (1) or (2) or section 1 of this act within five years following a conviction: The criminal and civil penalties enumerated in (a) of this subsection; plus up to a three-year prohibition against the issuance of tax exempt bonds under the authority of the Washington health care facilities authority; and up to a three-year prohibition from applying for and receiving a certificate of need.

(d) For a violation of RCW 70.170.060 (1) or (2) or section 1 of this act within five years of a conviction under (c) of this subsection: The criminal and civil penalties and prohibition enumerated in (a) and (b) of this subsection; plus up to a one-year prohibition from participation in the state medical assistance or medical care services authorized under chapter 74.09 RCW.

(3) The provisions of chapter 34.05 RCW shall apply to all noncriminal actions undertaken by the department of health, the department of social and health services, and the Washington health care facilities authority pursuant to this act.

Sec. 5. RCW 74.09.522 and 1989 c 260 s 2 are each amended to read as follows:

(1) For the purposes of this section, "managed health care system" means any health care organization, including health care providers, insurers, health care service contractors, health maintenance organizations, health insuring organizations, or any combination thereof, that provides directly or by contract health care services covered under RCW 74.09.520 and rendered by licensed providers, on a prepaid capitated case management basis and that meets the requirements of section 1903(m)(1)(A) of Title XIX of the federal social security act.

(2) No later than July 1, 1991, the department of social and health services shall enter into agreements with managed health care systems to provide health care services to recipients of aid to families with dependent children under the following conditions:

(a) Agreements shall be made for at least thirty thousand recipients state-wide;

(b) Agreements in at least one county shall include enrollment of all recipients of aid to families with dependent children;

(c) To the extent that this provision is consistent with section 1903(m) of Title XIX of the federal social security act, recipients shall have a choice of systems in which to enroll and shall have the right to terminate their enrollment in a system((~~: PROVIDED, That~~)). The department may limit recipient termination of enrollment without cause to the first month of a period of enrollment, which period shall not exceed six months((~~: AND PROVIDED FURTHER, That~~)). The department shall not restrict a recipient's right to terminate enrollment in a system for cause;

(d) To ensure that recipients enrolled in managed health care systems have access to a full range of health care services, the department shall explore incentives for participating managed health care systems to contract with family nurse practitioners, women's health care nurse practitioners, pediatric nurse practitioners, adult nurse practitioners, nurse midwives, and nurse anesthetists licensed under the authorization of the Washington state board of nursing pursuant to chapter 18.88 RCW, and, effective January 1, 1993, midwives licensed pursuant to chapter 18.50 RCW, who practice in the geographic area covered by the agreement, to provide services within their scope of practice as defined by chapters 18.88 and 18.50 RCW;

(e) To the extent that this provision is consistent with section 1903(m) of Title XIX of the federal social security act, participating managed health care systems shall not enroll a disproportionate number of medical assistance recipients within the total numbers of persons served by the managed health care systems, except that this subsection (d) shall not apply to entities described in subparagraph (B) of section 1903(m) of Title XIX of the federal social security act;

((~~(e)~~)) (f) Prior to negotiating with any managed health care system, the department shall estimate, on an actuarially sound basis, the expected cost of providing the health care services expressed in terms of upper and lower limits, and recognizing variations in the cost of providing the services through the various systems and in different project areas. In negotiating with managed health care systems the department shall adopt a uniform procedure to negotiate and enter into contractual arrangements, including standards regarding the quality of services to be provided; and financial integrity of the responding system;

((~~(f)~~)) (g) The department shall seek waivers from federal requirements as necessary to implement this chapter;

((~~(g)~~)) (h) The department shall, wherever possible, enter into prepaid capitation contracts that include inpatient care. However, if this is not possible or feasible, the department may enter into prepaid capitation contracts that do not include inpatient care;

((~~(h)~~)) (i) The department shall define those circumstances under which a managed health care system is responsible for out-of-system services and assure that recipients shall not be charged for such services; and

((~~(i)~~)) (j) Nothing in this section prevents the department from entering into similar agreements for other groups of people eligible to receive services under chapter 74.09 RCW.

(3) The department shall seek to obtain a large number of contracts with providers of health services to medicaid recipients. The department shall ensure that publicly supported community health centers and providers in rural areas, who show serious intent and apparent capability to participate in the project as managed health care systems are seriously considered as providers in the project. The department shall coordinate these projects with the plans developed under chapter 70.47 RCW.

(4) The department shall work jointly with the state of Oregon and other states in this geographical region in order to develop recommendations to be presented to the appropriate federal agencies and the United States congress for improving health care of the poor, while controlling related costs.

NEW SECTION. Sec. 6. A new section is added to chapter 70.58 RCW to read as follows:

(1) The department of health shall establish and operate an heirloom birth certificate program that shall offer a distinctive design certificate to parents. The department shall aggressively promote the sale of the heirloom birth certificate in hospitals and other appropriate places. The charge to the parents shall be not less than fifty dollars but not more than seventy-five dollars per certificate. Funds from the sale of heirloom birth certificates shall be distributed as follows:

(a) No more than five percent of the funds shall be expended for administrative purposes;

(b) At least fifty percent of the amount, less administrative costs, shall be provided to the Washington council for the prevention of child abuse and neglect pursuant to RCW 43.121.100, but in no case shall the amount be less than that received by the council for the fiscal year 1991; and

(c) Up to fifty percent of the amount, less administrative costs, shall be provided for a scholarship and loan repayment program for certified nurse midwives licensed under the authorization of the Washington state board of nursing pursuant to chapter 18.88 RCW and midwives licensed under chapter 18.50 RCW, or for students pursuing education leading to certification or licensure under chapter 18.88 or 18.50 RCW. The amount shall be equally divided between the two categories of midwives.

(2) Funds collected for the purposes of subsection (1)(c) of this section shall be disbursed by the higher education coordinating board as follows:

(a) If Senate Bill No. 5514 is enacted, the funds shall be deposited in the health professional loan repayment and scholarship program trust fund created therein. The deposited funds shall be expended for loan repayment and scholarship awards to midwives or midwifery students described in subsection (1)(c) of this section. In the event that midwives are not declared eligible for awards under the loan repayment or scholarship program authorized by Senate Bill No. 5514, the funds shall be held in trust until midwives are determined eligible and shall then be expended.

(b) If Senate Bill No. 5514 is not enacted, the higher education coordinating board shall expend the funds as awards to students pursuing licensure as midwives or certified nurse midwives under the physician, midwife, and pharmacist scholarship program authorized under chapter 70.180 RCW.