Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-23-160.

     Title of Rule and Other Identifying Information: New sections WAC 246-16-200, 246-16-210, 246-16-220, 246-16-230, 246-16-235, 246-16-240, 246-16-245, 246-16-250, 246-16-255, 246-16-260 and 246-16-265, Mandatory reporting--Intent, definitions, how and when to report, license holder self reports, license holder reporting other license holders, reports by professional liability insurance carriers, reports by health care institutions, reports by health service contractors and disability insurers, reports by professional review organizations, reports by courts, and reports by state and federal agencies.

     Hearing Location(s): Department of Health, Point Plaza East Room 139, 310 Israel Road S.E., Tumwater, WA 98501, on March 12, 2008, at 9:00 a.m.

     Date of Intended Adoption: March 31, 2008.

     Submit Written Comments to: Margaret Gilbert, Department of Health, P.O. Box 47873, Olympia, WA 98504-7873, margaret.gilbert@doh.wa.gov, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4930, by March 4, 2008.

     Assistance for Persons with Disabilities: Contact Margaret Gilbert by March 4, 2008, TTY (800) 833-6388 or 711.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules implement revisions to RCW 18.130.070 that SHB 2974 made in 2006. They will require individual license holders to self report and license holders to report other license holders who have committed unprofessional conduct or are unable to practice with reasonable skill and safety. They will also require certain other entities to report patient harm or risk of harm and actual knowledge that a license holder is unable to practice safely.

     Reasons Supporting Proposal: The proposed rules would protect the public by assuring information of unprofessional conduct and inability to practice safely reaches the disciplining authorities so appropriate action can be taken. SHB 2974 shifted authority for rule making on mandatory reporting from the various disciplining authorities to the department. RCW 18.130.070 now requires rules requiring license holder self reporting and reporting of other license holders. It permits the department to adopt rules requiring other entities to report. The rules focuses [focus] on patient safety and what the reporter knows, not rumor.

     Statutory Authority for Adoption: RCW 18.130.070 and 18.130.060.

     Statute Being Implemented: RCW 18.130.070.

     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: Margaret Gilbert, Department of Health, (360) 236-4913; Implementation and Enforcement: Bonnie King, Department of Health, (360) 236-4995.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement was not prepared. 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. The agency did not complete a cost-benefit analysis under RCW 34.05.328. RCW 34.05.328 (5)(b)(v) exempts rules the content of which is explicitly and specifically dictated by statute. A preliminary cost-benefit analysis may be obtained by contacting Margaret Gilbert, Department of Health, P.O. Box 47873, Olympia, WA 98504-7873, phone (360) 236-4913, fax (360) 236-4930, e-mail margaret.gilbert@doh.wa.gov.

February 6, 2008

Mary C. Selecky

Secretary

OTS-1251.2

MANDATORY REPORTING
NEW SECTION
WAC 246-16-200   Mandatory reporting -- Intent.   These mandatory reporting rules require certain reports about license holders and are intended to address patient safety. These rules are not intended to limit reports from any person who has a concern about a license holder's conduct or ability to practice safely.

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     (2) "Conviction" means a court has decided a person is guilty of any gross misdemeanor or felony. It includes any guilty or no contest plea and all decisions with a deferred or suspended sentence.

     (3) "Determination or finding" means a final decision that a license holder has harmed a patient or has caused an unreasonable risk of harm to a patient. This applies even if no adverse action or sanction has been imposed or if the license holder is appealing the decision.

     (4) "License holder" means a person holding a credential in a profession regulated by a disciplining authority listed in RCW 18.130.040(2).

     (5) "Unable to practice with reasonable skill and safety due to a mental or physical condition" means a license holder who:

     (a) A court has declared to be incompetent or mentally ill; or

     (b) Is not successfully managing a mental or physical condition and as a result poses a risk to patient safety.

     (6) "Unprofessional conduct" means the acts, conduct, or conditions described in RCW 18.130.180.

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     (a) When a patient has been harmed, a report to the department is required. A report to one of the approved impaired practitioner or voluntary substance abuse programs is not a substitute for reporting to the department.

     (b) When there is no patient harm, reports of inability to practice with reasonable skill and safety due to a mental or physical condition may be submitted to one of the approved impaired practitioner or voluntary substance abuse programs or to the department. Reports of unprofessional conduct are submitted to the department.

     (c) Reports to a national practitioner data bank do not meet the requirement of this section.

     (2) The report must include enough information to enable the disciplining authority to assess the report. If these details are known, the report should include:

     (a) The name, address, and telephone number of the person making the report.

     (b) The name, address, and telephone number(s) of the license holder being reported.

     (c) Identification of any patient or client who was harmed or placed at risk.

     (d) A brief description or summary of the facts that caused the report, including dates.

     (e) If court action is involved, the name of the court, the date of filing, and the docket number.

     (f) Any other information that helps explain the situation.

     (3) Reports must be submitted no later than thirty calendar days after the reporting person has actual knowledge of the situation.

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     (1) Any conviction, determination, or finding that he or she has committed unprofessional conduct; or

     (2) Information that he or she is unable to practice with reasonable skill and safety due to a mental or physical condition; or

     (3) Any disqualification from participation in the federal Medicare or Medicaid program.

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     (1) The reporting license holder must submit a report when he or she has actual knowledge of:

     (a) Any conviction, determination, or finding that another license holder has committed an act that constitutes unprofessional conduct; or

     (b) That another license holder may not be able to practice his or her profession with reasonable skill and safety due to a mental or physical condition.

     (2) The license holder does not have to report when he or she is:

     (a) A member of a professional review organization as provided in WAC 246-16-255;

     (b) Providing health care to the other license holder and the other license holder does not pose a clear and present danger to patients or clients; or

     (c) Part of a federally funded substance abuse program or approved impaired practitioner or voluntary substance abuse program and the other license holder is participating in treatment and does not pose a clear and present danger to patients or clients.

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     (1) Any malpractice settlement, award, or payment in excess of twenty thousand dollars that results from a claim or action for damages allegedly caused by a license holder's incompetence or negligence in the practice of the profession.

     (2) Award, settlement, or payment of three or more claims during a twelve-month period that result from claims or actions for damages allegedly caused by the license holder's incompetence or negligence in the practice of the profession.

     (3) Reports made according to RCW 18.57.245 or 18.71.350 meet the requirement.

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     (a) Hospitals and specialty hospital defined in chapter 70.41 RCW;

     (b) Ambulatory surgery centers defined in chapter 70.230 RCW;

     (c) Childbirth centers defined in chapter 18.46 RCW;

     (d) Nursing homes defined in chapter 18.51 RCW;

     (e) Chemical dependency treatment programs defined in chapter 70.96A RCW;

     (f) Drug treatment agencies defined in chapter 69.54 RCW; and

     (g) Public and private mental health treatment agencies defined in RCW 71.05.020 and 71.24.025.

     (2) The chief administrator or executive officer or designee of these institutions must report when:

     (a) A license holder's services are terminated or restricted because a license holder has harmed or placed at unreasonable risk of harm a patient or client; or

     (b) A license holder poses an unreasonable risk of harm to patients or clients due to a mental or physical condition.

     (3) Reports made by a hospital according to RCW 70.41.210 meet the requirement.

     (4) Commencing July 1, 2009, reports made by an ambulatory surgical center according to RCW 70.230.110 meet the requirement.

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     (2) Unless prohibited by state or federal law, the professional review organization must report:

     (a) When it makes a determination or finding that a license holder has caused harm to a patient or placed a patient at unreasonable risk of harm; and

     (b) When it has actual knowledge that the license holder poses an unreasonable risk of harm due to a mental or physical condition.

     (3) Professional review organizations and individual license holders participating in a professional review organization do not need to report during the investigative phase of the professional review organization's operation if the organization completes the investigation in a timely manner.

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     (1) When it determines a license holder has harmed or placed at unreasonable risk of harm a patient or client; and

     (2) When it has actual knowledge that the license holder poses an unreasonable risk of harm due to a mental or physical condition.

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