BP BHEAD INT S [atlas:bill]

AN ACT Relating to decisions about health care services; amending RCW 4.16.350; adding a new section to chapter 4.24 RCW; adding a new section to chapter 7.70 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. The legislature finds that health carrier practices that unjustly delay or deny medically appropriate care and treatment to consumers are unconscionable. When consumers are facing serious, even life-threatening diseases or conditions, they are least able to fight with their health carrier in order to get access to needed health care and treatment. In order to protect Washington residents in need of medically necessary care and treatment, and to prevent inappropriate treatment delays or denials, the legislature finds it is necessary to enact the consumer protections set out in this act.

NEW SECTION. Sec. 2. A new section is added to chapter 4.24 RCW to read as follows:

(1) The definitions in this subsection apply throughout this section.

(a) "Appropriate and medically necessary" means the standard for health care services as determined by physicians and health care providers in accordance with the prevailing practice and standards of the medical profession and community.

(b) "Enrollee" means an individual covered by a health plan, including dependents.

(d) "Health care treatment decision" means a determination made regarding whether a health care service or services are actually provided by the health plan and a decision that affects the quality of the diagnosis, care, or treatment provided to the plan's enrollees.

(e) "Health carrier" means the same as defined in RCW 48.43.005.

(f) "Health plan" means the same as defined in RCW 48.43.005, except that it includes a policy, contract, or agreement offered by any person, not just a health carrier.

(g) "Managed care entity" means an entity other than a health carrier that delivers, administers, or assumes risk for health care services with systems or techniques to control or influence the quality, accessibility, utilization, or costs and prices of the services to a defined enrollee population, but does not include an employer purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer or a pharmacy under chapter 18.64 RCW.

(h) "Ordinary care" means, for a health carrier or managed care entity, that degree of care that a health carrier or managed care entity of ordinary prudence would use under the same or similar circumstances. For a person who is an employee, agent, ostensible agent, or representative of a health carrier or managed care entity, "ordinary care" means that degree of care that a person of ordinary prudence in the same profession, specialty, or area of practice as the person would use in the same or similar circumstances.

(2)(a) A health carrier or a managed care entity for a health plan shall exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an enrollee proximately caused by its failure to exercise the ordinary care.

(b) A health carrier or a managed care entity for a health plan is also liable for damages for harm to an enrollee proximately caused by health care treatment decisions made by its:

(i) Employees;

(ii) Agents;

(iii) Ostensible agents; or

(iv) Representatives who are acting on its behalf and over whom it has the right to exercise influence or control or has actually exercised influence or control which result in the failure to exercise ordinary care.

(3) It is a defense to any action asserted under this section against a health carrier or managed care entity for a health plan that:

(a) Neither the health carrier or managed care entity, nor any employee, agent, ostensible agent, or representative for whose conduct the health carrier or managed care entity is liable under subsection (2)(b) of this section, controlled, influenced, or participated in the health care decision; or

(b) The health carrier or managed care entity did not deny or delay payment for treatment prescribed or recommended by a provider to the enrollee.

(4) The standards in subsection (2) of this section do not create an obligation on the part of the health carrier or managed care entity to provide to an enrollee treatment that is not covered by the health plan.

(5) This section does not create any liability on the part of an employer or an employer group purchasing organization that purchases coverage or assumes risk on behalf of its employers.

(6) Nothing in any law of this state prohibiting a health carrier or managed care entity from practicing medicine or being licensed to practice medicine may be asserted as a defense by the health carrier or managed care entity in an action brought against it under this section. (7)(a) A person may not maintain a cause of action under this section against a health carrier or managed care entity unless the affected enrollee or the enrollee's representative:

(i) Has exhausted any applicable reasonable grievance procedures provided for in the health plan; or

(ii) Has participated in the grievance process in good faith for ninety days.

(b) The enrollee is not required to comply with (a) of this subsection and no abatement or other penalty for failure to comply shall be imposed if the enrollee has filed a pleading alleging in substance that:

(i) Harm to the enrollee has already occurred because of the conduct of the health carrier or managed care entity or because of an act or omission of an employee, agent, ostensible agent, or representative of the carrier or entity for whose conduct it is liable; or

(ii) The review would not be beneficial to the enrollee, unless the court, upon motion by a defendant carrier or entity, finds after hearing that the pleading was not made in good faith.

(c) This subsection (7) does not prohibit an enrollee from pursuing other appropriate remedies, including injunctive relief, a declaratory judgment, or other relief available under law, if its requirements place the enrollee's health in serious jeopardy.

(8) In an action against a health carrier, a finding that a physician or other health care provider is an employee, agent, ostensible agent, or representative of such a health carrier shall not be based solely on proof that the person's name appears in a listing of approved physicians or health providers made available to enrollees under a health plan.

(9) A person who is injured by a violation of this section may bring a civil action in superior court to either enjoin further violations, to recover the actual damages sustained by him or her, or both, together with the costs of the suit, including reasonable attorneys' fees, and the court may in its discretion, upon a finding of bad faith on the part of the health carrier, increase the award of damages to an amount not to exceed three times the actual damages sustained.

(10) This section does not apply to workers' compensation insurance under Title 51 RCW.

NEW SECTION. Sec. 3. A new section is added to chapter 7.70 RCW to read as follows:

This chapter does not apply to actions under section 2 of this act for injuries resulting from health care treatment decisions made by or on behalf of health carriers or managed care entities, including entities listed in RCW 7.70.020(3). For purposes of this section:

(1) "Health care treatment decision" means a determination made regarding whether a health care service or services are actually provided by the health plan and a decision that affects the quality of the diagnosis, care, or treatment provided to the plan's enrollees;

(2) "Health carrier" means the same as defined in RCW 48.43.005; and

(3) "Managed care entity" means an entity other than a health carrier that delivers, administers, or assumes risk for health care services with systems or techniques to control or influence the quality, accessibility, utilization, or costs and prices of the services to a defined enrollee population, but does not include an employer purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer or a pharmacy under chapter 18.64 RCW.

Sec. 4. RCW 4.16.350 and 1998 c 147 s 1 are each amended to read as follows:

(1) Except as otherwise provided in subsection (2) of this section, any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against:

((~~(1)~~)) (a) A person licensed by this state to provide health care or related services, including, but not limited to, a physician, osteopathic physician, dentist, nurse, optometrist, ((~~podiatric~~)) pediatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician's assistant, osteopathic physician's assistant, nurse practitioner, or physician's trained mobile intensive care paramedic, including, in the event such person is deceased, his estate or personal representative;

((~~(2)~~)) (b) An employee or agent of a person described in (a) of this subsection ((~~(1) of this section~~)), acting in the course and scope of his employment, including, in the event such employee or agent is deceased, his estate or personal representative; or

((~~(3)~~)) (c) An entity, whether or not incorporated, facility, or institution employing one or more persons described in (a) of this subsection ((~~(1) of this section~~)), including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his employment, including, in the event such officer, director, employee, or agent is deceased, his estate or personal representative;

based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission: PROVIDED, That the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient's representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient's representative has one year from the date of the actual knowledge in which to commence a civil action for damages.

For purposes of this ((~~section~~)) subsection, notwithstanding RCW 4.16.190, the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years, and such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred under this ((~~section~~)) subsection. Any action not commenced in accordance with this ((~~section~~)) subsection shall be barred.

For purposes of this ((~~section~~)) subsection, with respect to care provided after June 25, 1976, and before August 1, 1986, the knowledge of a custodial parent or guardian shall be imputed as of April 29, 1987, to persons under the age of eighteen years.

This ((~~section~~)) subsection does not apply to a civil action based on intentional conduct brought against those individuals or entities specified in this ((~~section~~)) subsection by a person for recovery of damages for injury occurring as a result of childhood sexual abuse as defined in RCW 4.16.340(5).

(2) Any action under section 2 of this act shall be commenced within three years of the completion of the grievance process, if applicable, under section 2(7) of this act, within three years of the accrual of the cause of action if the grievance process under section 2(7) of this act is not applicable, but in no event shall an action be commenced more than eight years after the relevant act or omission occurred.

NEW SECTION. Sec. 5. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.