WSR 20-09-128
[Filed April 21, 2020, 8:38 a.m.]
I.INTRODUCTION AND PURPOSE: Washington state governor Jay Inslee has issued Proclamation 20-05, subsequently amended, proclaiming a statewide state of emergency due to an outbreak of coronavirus disease 2019 (COVID-19) in the United States and community spread of COVID-19 in Washington state.
On March 30, 2020, Governor Inslee issued Proclamation 20-36 waiving regulatory barriers to health care facilities' ability to respond to COVID-19 recognizing that health care facilities are critical to meeting our health care needs.
At the federal level, the Centers for Medicare and Medicaid Services (CMS) has issued blanket 1135 waivers, with a retroactive date of March 1, 2020, through the end of President Trump's emergency declaration
II.AUTHORITY: The department issues this guidance under its authority to interpret, administer, and enforce the provisions of chapter 70.41 RCW and the rules adopted thereunder, chapter 246-320 WAC.
III.SCOPE AND DURATION: During the time period of Governor Inslee's declared State of Emergency and to support health care facilities responding to COVID-19, the department of health provides the following guidance to achieve alignment with the CMS blanket waivers referenced above for hospitals licensed under chapter 70.41 RCW and other health care facilities to which the state laws below apply. This guidance applies retroactively beginning on March 1, 2020, to correspond with the effective date of the federal blanket waivers.
Discharge Planning: CMS has waived detailed discharge planning for hospitals related to post-acute care services so as to allow for a more fluid transfer process and expedite the safe discharge and movement of patients among care settings. CMS has not waived the requirement that transfers be to an appropriate setting with the necessary medical information and goals of care.
The department acknowledges and supports the flexibility CMS has provided to ensure discharges are done without undue delay to respond to COVID-19. The department will likewise exercise regulatory flexibility to permit licensed hospitals to discharge patients in compliance with CMS standards, notwithstanding any inconsistent requirements in RCW 70.41.322, 70.41.324, and WAC 246-320-226. The department continues to require appropriate discharge planning and processes.
Patient Transfer Process: CMS is waiving the enforcement of section 1867(a) of the Emergency Medical Treatment and Labor Act (EMTALA) to allow facilities to screen patients at a location offsite from the hospital's campus to prevent the spread of COVID-19.
The department interprets RCW 70.170.060(2) and WAC 246-320-281 as allowing the transfer of a patient with an emergency medical condition from an emergency department to another appropriate setting of care if the transferring hospital reasonably determines that the transfer is needed to preserve limited medical resources due to the COVID-19 outbreak. A transfer may not be based on ability to pay, and the transferring hospital must follow reasonable procedures in making transfers, including confirming acceptance of the transfer by the receiving hospital. A transfer must also comply with the provisions of EMTALA that have not been waived.
Patient Care Services and Verbal Orders: Based on the department's exemption authority pursuant to WAC 246-320-026(1), the department exempts all hospitals from complying with the requirements in:
(1) WAC 246-320-226 (3)(g) to mirror the CMS exemption related to preestablished protocols to give hospitals flexibility in their use.
(2) WAC 246-320-166 (4)(h) to give flexibility in the timeline for accepting and transcribing verbal orders for the medical record consistent with the CMS waivers related to verbal orders.
Adverse Events Reporting: The Governor's Proclamation 20-36 waived the adverse event reporting timelines in RCW 70.56.020 (2)(a) and (b), which require adverse health event notification within forty-eight hours and a root cause analysis and corrective action plan to be reported within forty-five days. The department deems these timelines to also be waived in its corresponding rules, WAC 246-302-020 (1) and (2), which aligns state law with CMS's 1135 waiver of the requirement to promptly report patient deaths occurring while in restraint or seclusion.
Seclusion: CMS has provided flexibility in the use of seclusion to address potential confinement needs in responding to COVID-19. The department's rule, WAC 246-320-226 (3)(f), requires the use of seclusion to be consistent with 42 C.F.R. 482. The department deems seclusion that is consistent with the 1135 waiver to be consistent with 42 C.F.R. 482.
V. Signature: Dated: April 20, 2020.
John Wiesman, DrPH, MPH
Secretary of Health