SENATE BILL REPORT

SHB 2426

As Reported by Senate Committee On:

Behavioral Health Subcommittee to Health & Long Term Care, February 27, 2020

Ways & Means, March 2, 2020

Title: An act relating to protecting patient safety in psychiatric hospitals and other health care facilities regulated by the department of health through improvements to licensing and enforcement.

Brief Description: Protecting patient safety in psychiatric hospitals and other health care facilities.

Sponsors: House Committee on Health Care & Wellness (originally sponsored by Representatives Cody, Robinson, Kilduff, Tharinger, Davis, Macri, Riccelli and Pollet; by request of Department of Health).

Brief History: Passed House: 2/14/20, 84-14.

Committee Activity: Behavioral Health Subcommittee to Health & Long Term Care: 2/21/20, 2/27/20 [DPA-WM, w/oRec].

Ways & Means: 2/29/20, 3/02/20 [DPA (BH), w/oRec, DNP].

Majority Report: Do pass as amended and be referred to Committee on Ways & Means.

Signed by Senators Dhingra, Chair; Darneille and Frockt.

Minority Report: That it be referred without recommendation.

Signed by Senators Wagoner, Ranking Member; O'Ban.

Staff: Greg Attanasio (786-7410)

Majority Report: Do pass.

Signed by Senators Rolfes, Chair; Frockt, Vice Chair, Operating, Capital Lead; Mullet, Capital Budget Cabinet; Billig, Carlyle, Conway, Darneille, Dhingra, Hasegawa, Hunt, Keiser, Liias, Pedersen and Van De Wege.

Minority Report: That it be referred without recommendation.

Signed by Senators Braun, Ranking Member; Brown, Assistant Ranking Member, Operating; Honeyford, Assistant Ranking Member, Capital; Becker, Muzzall, Schoesler, Warnick and Wilson, L..

Minority Report: Do not pass.

Signed by Senator Wagoner.

Staff: Travis Sugarman (786-7446)

Background: Licensing of Private Establishments. The Department of Health (DOH) regulates "establishments," which are defined as places receiving or caring for persons with mental illness or substance use disorder. To become licensed to operate an establishment, a person must receive a certificate of need for the project, obtain approval of facility plans under the construction review process, obtain approval from the state director of fire protection, and successfully complete a DOH survey of the facility. Establishments must operate in compliance with DOH regulations regarding clinical facilities, patient care services, staffing, patient safety, clinical records, and pharmacy and medication services.

DOH may conduct inspections at any time to determine compliance with establishment standards. DOH may issue a statement of deficiencies if it finds the establishment is not in compliance with operating standards. The failure to correct the deficiencies may result in the denial, suspension, modification, or revocation of the establishment license.

Sanctions for Health Care Facilities. DOH licenses several types of health care facilities, including hospitals, establishments, and ambulatory surgical facilities. If an inspection or survey identifies noncompliance with health care facility standards, DOH may require the facility to submit a plan of correction to address each of the deficiencies. DOH may also, for good cause, deny, suspend, revoke, or modify a license or provisional license. In the case of ambulatory surgical facilities, DOH may assess civil monetary penalties up to $1,000 per violation. Operating an establishment without a license may result in imprisonment and a fine of up to $1,000.

Incident Reporting. Certain types of health care facilities, including establishments, must report adverse health events to DOH. Under the reporting system, an initial notification must be filed with DOH within 48 hours of confirmation of the event. Full reports must be submitted within 45 days of confirmation. Adverse health events include the 29 serious reportable events identified by the National Quality Forum in 2011. Reportable adverse events are grouped into seven categories, including surgical or invasive procedure events, product or device events, patient protection events, care management events, environmental events, radiologic events, and potential criminal events.

Summary of Amended Bill: Psychiatric Hospital Licensure. During the first two years of licensure for a new psychiatric hospital, or any existing psychiatric hospital that changes ownership after July 1, 2020, DOH shall provide technical assistance, perform at least three unannounced inspections, and conduct additional inspections of the hospital as necessary to verify the hospital is complying with requirements.

Psychiatric hospitals are defined as a hospital caring for any person with mental illness or substance use disorder. The term does not include acute care hospitals, state psychiatric hospitals, or residential treatment facilities.

Enforcement of Health Care Facility Licensing Standards. If a licensed psychiatric hospital fails or refuses to comply with state licensing standards, DOH may take one or more of several actions. DOH may:

• impose reasonable conditions on a license or impose a civil fine up to $10,000 per violation, with maximum total fines of $1 million, if the psychiatric hospital has been subject to multiple enforcement actions for the same or similar violation, has been given a previous statement of deficiency for the same or similar violation, or has failed to correct noncompliance by an agreed upon date;

• impose civil fines up to $10,000 for each day that a person operates a psychiatric hospital without a license;

• suspend, revoke, or refuse to renew a license;

• suspend the admission of a specific category or categories of patients by imposing a limited stop placement order if DOH finds the noncompliance results in immediate jeopardy; or

• suspend all new admissions to the facility by issuing a stop placement order if DOH finds the noncompliance results in immediate jeopardy and is not confined to a specific area of the hospital.

Civil fines collected by DOH may only be used to provide technical assistance to psychiatric hospitals and to offset the cost of psychiatric hospital licensing activities. DOH may only impose a stop placement or limited stop placement order after it provides written notice and allows the hospital 24 hours to develop and implement a corrective action plan. If DOH issues a stop placement order or limited stop placement order, it must conduct a follow-up inspection within five business days to verify the violations that were the basis for the order have been corrected. The stop placement order or limited stop placement order must be terminated if the violations have been corrected and the psychiatric hospital is able to maintain the corrections. A licensee aggrieved by a DOH action may request an adjudicative proceeding pursuant the Administrative Procedure Act.

Psychiatric hospital may request a show cause hearing if DOH suspends a license or imposes conditions on a license effective immediately.

Beginning with psychiatric hospitals and residential treatment facilities, DOH must make health care facility inspection reports, statements of deficiencies, plans of correction, notice of acceptance of plans of correction, enforcement actions, and notices of resolution available to the public on the Internet, to the extent that resources allow.

DOH is directed to evaluate the appropriate levels of oversight for licensed health care facilities and identify opportunities to consolidate and standardize licensing and enforcement standards across facility types. DOH must work with stakeholders to create recommendations to develop a uniform health care facility enforcement act.

Elopement and Death Reporting by Psychiatric Hospitals. Psychiatric hospitals must report to DOH every patient elopement and any death associated with elopement, medication error, a fall, the use of physical restraints, or resulting from a physical assault or suicide. The report must be made within three days of the elopement or death. An "elopement" is defined as any situation in which a patient admitted to the psychiatric hospital is cognitively, physically, mentally, emotionally, or chemically impaired and leaves the psychiatric hospital, or grounds of the psychiatric hospital, unsupervised, unnoticed, and without the staff's knowledge prior to scheduled discharge.

Appropriation: None.

Fiscal Note: Available.

Creates Committee/Commission/Task Force that includes Legislative members: No.

Effective Date: The bill contains an emergency clause and takes effect immediately.

Staff Summary of Public Testimony on Substitute House Bill (Behavioral Health Subcommittee to Health & Long Term Care): The committee recommended a different version of the bill than what was heard. PRO: The bill is meant to better protect patients and have better oversight and regulation of psychiatric hospitals. DOH does not currently have all needed tools to provide adequate oversight.

OTHER: The bill is missing adequate due process rights for the hospital. It should include a requirement for DOH to develop rules for when it would suspend or revoke a license. There should be a show cause hearing before immediate action is taken by DOH.

Persons Testifying (Behavioral Health Subcommittee to Health & Long Term Care): PRO: Kristin Peterson, Washington State Department of Health; Lindsey Grad, SEIU 1199NW. OTHER: Lisa Thatcher, Washington State Hospital Association.

Persons Signed In To Testify But Not Testifying (Behavioral Health Subcommittee to Health & Long Term Care): No one.

Staff Summary of Public Testimony on Bill as Amended by Behavioral Health Subcommittee to Health & Long Term Care (Ways & Means): PRO: This bill will help DOH better protect patients in psychiatric hospitals. With the rapid increase in psychiatric hospital beds in recent years, there has also been an increase in patient safety issues. DOH currently has very limited enforcement actions available to it. This bill would expand those enforcement actions. DOH believes that it provides that proper levels of protection and appropriate due process for hospitals.

OTHER: There has definitely been thoughtful and respectful conversations. We believe there is a need for a floor amendment to accomplish two things: (1) require DOH to adopt rules to guide when they may suspend, revoke, or not renew a license for a Psychiatric Hospital; and (2) create clarity around stop placements and when it is appropriate for a stop placement to be lifted.

Persons Testifying (Ways & Means): PRO: Christie Spice, Department of Health. OTHER: Lisa Thatcher, Washington State Hospital Association.

Persons Signed In To Testify But Not Testifying (Ways & Means): No one.