HOT TOPICS FOR PUBLIC HOSPITAL DISTRICTS By Jim Fredman May 4, 2006

1. Association of Washington Public Hospital DistrictsRetreat for CEOs and Administrators“Leading Wisely, Living Well” Cave B Inn at SageCliffe,Quincy, WashingtonMay 2-4, 2006 HOT TOPICS FOR PUBLIC HOSPITAL DISTRICTS By Jim FredmanMay 4, 2006

2. ACTION ITEMS • Public Records Act • Confidential Information • Medical malpractice reform • Patient financial agreements • Bills • Charity care • Deficit Reduction Act • Privacy complaints • Medical staff issues

3. ISSUES TO WATCH • Medicare enrollment • State Medicaid audits • Patient Safety and Quality ImprovementAct of 2005

4. RECODIFICATION OF THE PUBLIC RECORDS ACT • Beginning July 1, 2006, RCW 42.17.250 to .348 will be recodified under Chapter 42.56 RCW, entitled the “Public Records Act” • Exemptions reorganized into categories such as “health care” as RCW 42.56.360 • Conversion chart attached

5. PUBLIC RECORDS ACT – 2005 AMENDMENTS (2SHB 1758) 1. Eliminates “overbroad” exemption 2. Requires large requests be filled on an installment basis 3. Allows agencies to require deposit if copies are requested 4. Allows agencies to stop fulfilling request if installment not claimed or reviewed

6. PUBLIC RECORDS ACT – 2005 AMENDMENTS (2SHB 1758) 5. Designate and publicly identify public disclosure officer to whom all requests should be directed 6. Shortens the statute of limitations to one year from when the last document was produced or exemption asserted

7. PUBLIC RECORDS ACT – 2005 AMENDMENTS (2SHB 1758) 7. Requires the attorney general to adopt advisory model rules addressing • “fullest assistance” requirement • large requests • electronic records • any other topic

8. ATTORNEY GENERAL’S MODEL RULES • Chapter 44-14 WAC • Optional model rules and best practices • Roadmap for public hospital district policy

9. ATTORNEY GENERAL’S MODEL RULES, cont. • Topics • Agency description, contact information, public records officer • Availability of public records • Processing requests • Exemptions • Cost of providing copies • Review of denials • PHD can adopt the model rules but would be bound to attorney general comments • suggest PHD draft own policy

10. CONFIDENTIAL INFORMATION Keeping confidential information confidential when subject to • Public Records Act • Open Pubic Meetings Act

11. PUBLIC DISCLOSURE EXEMPTIONS • Agency’s burden to show exemption applies (RCW 42.17.251) • All exemptions construed narrowly(RCW 42.17.340(1))

12. PUBLIC DISCLOSURE EXEMPTIONS, cont. Most common exemptions include: • Medical records (RCW 42.17.312) • Quality improvement (RCW 42.17.310(1)(hh)) • Privacy (RCW 42.17.330) • Deliberative process (RCW 42.17.310(1)(i)) • Work product (RCW 42.17.310(1)(j)) • Attorney-client privilege • Commercial purposes • Certain employment records

13. PUBLIC DISCLOSURE EXEMPTIONS, cont. • If an exemption applies, an attempt should be made to label documents accordingly • quality improvement (RCW4.24.250 and 70.41.200) • attorney-client communication/attorney work product • draft/deliberative process • Limit who has access within the facility

14. OPEN PUBLIC MEETINGS ACT • Meetings open and public unless executive session permitted • Executive session (RCW 42.30.110) • negotiations of publicly bid contracts • real estate • national security • complaints against public officers/employees • qualifications of or review public employee/elective office

15. OPEN PUBLIC MEETINGS ACT, cont. • Executive session (RCW 42.30.110) • discuss claims with legal counsel • existing or reasonably expected litigation • litigation or legal risks expected to result in adverse legal or financial consequences • presence of legal counsel alone does not justify executive session

16. OPEN PUBLIC MEETINGS ACT, cont. • Executive session (RCW 70.44.062(2)) • QI/peer review committee documents and discussions • Final action must be in open meeting • Matters disclosed in open meeting lose privilege and confidentiality

17. QUALITY IMPROVEMENT/PEER REVIEW PRIVILEGE • Relatively broad scope • peer review, risk management, credentialing, complaints relating to health care(RCW 70.41.200, RCW 4.24.250) • If not a hospital, consider a coordinated quality improvement program(RCW 43.70.510)

18. QUALITY IMPROVEMENT/PEER REVIEW PRIVILEGE, cont. • Important to have plan and policies that identify • QI/peer review committees and responsibilities • committees that obtain/maintain documents on behalf of peer review/QI committee • documents collected and maintained on behalfof peer review/QI committees (complaints, medical staff credentials information, etc.) • Exempt from disclosure • Appropriate for executive session

19. CORPORATE COMPLIANCE DOCUMENTS • Corporate compliance documents • hotline complaints? • routine audits? • audits that arise from complaint? • issues found during an audit? • Exemptions? • attorney work product/attorney-client communication (rendering legal advice is at core of both) • quality improvement

20. MEDICAL MALPRACTICE REFORM (EFFECTIVE June 1, 2006) • Provider statements made within 30 days of discovery of incident not admissible at trial • promise to pay or write off hospital bills • related to discomfort pain, suffering, injury or death • apology, fault or sympathy • remedial actions regarding conduct • Consider policy providing guidance to medical staff and employees regarding such statements

21. MEDICAL MALPRACTICE REFORM, cont. • Requires any drug orders or prescriptions to be hand printed, typed or electronic • Voluntary arbitration • Mandatory mediation • Expands immunity for reporting unprofessional conduct

22. ADVERSE EVENT REPORTING • Expands reportable events to 27 in the following categories: • surgical • environmental • patient protection • care management • product or device • criminal List of reportable events attached

23. ADVERSE EVENT REPORTING, cont. • Requires DOH notification within two days of event confirmation • Within 45 days after confirming event, hospital must: • conduct a root cause analysis • develop an action plan for implementing any necessary changes  • DOH will develop rules to implement • PHD should update policies

24. PATIENT FINANCIAL AGREEMENT • Class actions • charity care • outpatient billing

25. PATIENT FINANCIAL AGREEMENT • Consider revising financial agreements to inform patient that • hospital rates are set forth in hospital’s chargemaster and available for review • hospital charges may differ from amounts others are obligated to pay based on each person’s private insurance, Medicare/ Medicaid coverage or lack of coverage

26. PATIENT FINANCIAL AGREEMENT, cont. • the hospital has a charity care program and patient may request that information • patient may incur liability to the hospital for outpatient services that patient would not incur if services were provided in a physician office rather than hospital-based facility • estimate of such additional liability will be provided and actual liability will depend on the services rendered

27. HOSPITAL BILLS ESSB 6189 • New section to RCW 70.41 • Before discharge a hospital must furnish each patient receiving inpatient services with • name of physician groups or other professional partners who commonly provide care in the hospital and from whom patient may receive a bill • provider telephone number for questions regarding bills

28. CHARITY CARE • SSHB 2574 proposed to increase charity care level and address billing practices • was not adopted • Hospital association is drafting policy to address most items in SSHB 2574

29. CHARITY CARE, cont. • Draft policy: • written notification of availability of charity care • written policies regarding collection practices and annual summary to board of collection actions

30. CHARITY CARE, cont. • Charity care provided: • 100% of federal poverty guidelines (FPG) receive free care • 200% of FPG pay up to 100% of estimated cost of care • 300% of FPG pay up to 130% of estimated cost of care

31. DEFICIT REDUCTION ACT Facilities that receive over $5 million in Medicaid payments must: • establish written policies for employees with detailed information about • federal False Claims Act • administrative remedies for false statements under federal law

32. DEFICIT REDUCTION ACT, cont. • applicable state laws establishing civil or criminal penalties for fraud • whistleblower protections • the role of federal and state laws in preventing and detecting fraud, waste and abuse

33. DEFICIT REDUCTION ACT, cont. • Include in such policies detailed provisions about the entity’s own policies and procedures for detecting and preventing fraud, waste and abuse • Include in employee handbook specific information on applicable laws, rights of employees to be protected as whistleblowers, and the entity’s policies and procedures for detecting and preventing fraud, waste and abuse

34. DEFICIT REDUCTION ACT, cont. • If fail to implement will lose Medicaid payments • Increases focus on Medicaid fraud • Increases documentation requirements for aliens seeking Medicaid coverage

35. MEDICAL STAFF Quality patient care is paramount, followed closely by fairness and process • Poliner $366 million verdict for 60-day summary suspension of cardiac cath lab privileges • Lessons • diligently follow own processes and procedures • try to keep competitors out of the process • be fair to the practitioner under review

36. MEDICAL STAFF, cont. • Responding to requests for information • Washington hospitals have duty to respond (RCW 70.41.230) • Kadlec Medical Center v. Lakeview Medical Center LLC Anesthesia Associates, E.D. La. • received a detailed request for information • responded only with employment dates and staff appointment, stated nothing more would be provided due to large number of requests

37. MEDICAL STAFF, cont. • did not inform Kadlec about serious allegations of misconduct (diversion of drugs) • Lakeview omitted the information based on fear of suit by physician

38. MEDICAL STAFF, cont. Recommendations • Respond to requests for • dates of association, type of association, clinical privileges held • reasons for termination of association • adverse actions and proposed adverse actions and basis for the actions or proposed actions

39. MEDICAL STAFF, cont. • Questionable but likely - current investigation, but no proposed adverse action • No duty to - respond to hypothetical questions - provide opinions about abilities - but if choose to, make sure you have a good release • Communications should be peer review/QI committee to peer review/QI committee

40. PRIVACY COMPLAINTS • Patients have the right under HIPAA to file complaint with OCR • To minimize sanctions, investigate complaints or issues that PHD becomes aware of • Violation? • Revise policy/remedial actions? • Sanctions for staff involved? • Mitigation of damages? • Document • No duty to self-report

41. MEDICARE PROVIDER ENROLLMENT • Final rule published April 21, 2006 • Amends 42 CFR Part 424 • providers must complete CMS 855 enrollment application and resubmit same every five years • resubmit within 90 days of notice from CMS • notify CMS of changes within 90 days of change (i.e., board, managing employees)

42. MEDICARE PROVIDER ENROLLMENT, cont. • 855 contains certification regarding compliance with all Medicare laws • failure to submit may result in termination of agreement

43. NATIONAL PATIENT SAFETY AND QUALITY ACT OF 2005 National Peer Review Protection? • Patient safety organizations to which providers can voluntarily report patient safety work product (medical errors and patient safety information) • PSO to analyze and provide feedback • Patient safety work product is privileged and confidential • Requires HHS adopt implementing regulations

44. FEDERAL AUDITS OF DSHS • Overpayments discovered • DSH payments ($44 million in excess of hospital specific limits) • undocumented aliens ($75 million?) • DSHS to negotiate with HHS • If DSHS must refund money, it may seek overpayments from hospitals

45. Questions?

46. CONTACT INFORMATION James J. Fredman, IIITelephone: 206-447-2909Email: Fredj@Foster.com Foster Pepper PLLC1111 Third Avenue, Suite 3400Seattle, WA 98101www.foster.com