Published 2/8/2017 

WSMA seeks to reverse disastrous “duty to warn” court decision

In a year full of surprises, physicians and the provider community in Washington state were given a final shock in December, when a decision from the state Supreme Court greatly expanded the longstanding “duty to warn” standard, significantly increasing liability risks for potentially any health care provider with patient contact. The WSMA has joined with a consortium of associations to redress this massive expansion of liability to the provider community, supporting a motion for reconsideration with the court and seeking a statutory fix via the state legislature.

As covered in the Dec. 28 Membership Memo and in the February issue of WSMA Reports, the court decision (Volk v. DeMeerleer) held it is the duty of a health care provider to warn all foreseeable victims of violence if a patient under their care makes a specific threat during outpatient treatment. Current state law creates a duty to warn others only when a patient makes a threat against a reasonably identifiable victim, in the context of involuntary commitment. The court rejected our position that the outpatient duty should be the same as the current standard as applies to a patient involuntarily committed, stating that foreseeability in this context is a question for a jury to decide, which lessens the chance of motions for summary judgment to succeed.

With this decision, the court increased the risk of liability not only for psychiatrists, but also for any health care provider treating a patient who makes threats under their care, while establishing a near-impossible obligation for health care professionals to identify “all foreseeable” victims.

The defendant psychiatrist in the case has filed a motion for reconsideration, and the WSMA has joined a number of partners to file an amicus brief in support. Our brief argues important legal and policy concerns, including an inherent conflict between the court’s opinion and state and federal patient privacy laws (such as HIPAA). Additionally, we argue that expecting providers to warn any foreseeable victim, even when no threat against an identifiable person has been made, is an onerous burden and unreasonably increases liability, which would raise health care costs and impede integrative services.

The court is expected to assess the brief and the motion, then decide whether to call for an answer to the brief, or to the reconsideration motion, or to both, within a month.

In addition to our judicial efforts, we are seeking a legislative solution, via House Bill 1810, which would return the duty to warn standard to its previous, narrower, definition. The bill, sponsored by Rep. Eileen Cody, is also supported by the Washington State Hospital Association, the Washington State Psychiatric Association and the Liability Reform Coalition, among others.

Notably, the WSMA was joined by many other amici in submitting the briefs, including the Washington State Hospital Association, the Washington State Psychiatric Association, the Washington Association for Mental Health Treatment Protection, the Washington State Coalition of Mental Health Professionals and Consumers, the Washington State Society for Clinical Social Work, the Washington Chapter of the National Association of Social Workers, Washington Council for Behavioral Health, the Washington Chapter of the American College of Emergency Physicians, the Washington Academy of Family Physicians, the American Psychiatric Association, and the American Medical Association, with additional support provided by Physicians Insurance A Mutual Company.

If you have questions about this case, please contact Tierney Edwards, JD at tee@wsma.org.

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Published 2/08/2017

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Published 2/8/2017 

WSMA victory in state Supreme Court medical malpractice case considering burden of proof

In a case that could have had profound consequences for physicians and other health care providers, the Washington Supreme Court handed down a most welcome 9-0 decision in Dunnington v. VMMC, protecting the established burden of proof in medical malpractice cases rather than lowering that burden, as a victory for the plaintiffs would have done.

At issue in the case was a legal question concerning the burden of proof of causation in medical malpractice cases when a plaintiff alleges loss of chance of a better outcome. While the defendant in the case was a podiatrist, a decision against the defendant would likely have changed how causation is litigated against all health care providers—lowering the burden of proof for loss of a chance of a better outcome and resulting in even more defensive medicine. (For details of the case, see this Membership Memo item from March 23, 2016.)

The court also considered whether, if the defendant physician relies on a "contributory negligence" legal defense, a jury should be allowed to hear evidence related to a patient's failure to follow his or her physician’s instructions. Fortunately, the court also agreed with our position on this issue by determining that evidence related to how a patient complied with a physician’s instructions (or in this case, failed to comply) could be presented to the jury when relevant to the defendant’s contributory negligence defense.

The WSMA filed an amicus brief in this case, joined by the Washington State Hospital Association, the Washington State Radiological Society, the Washington Chapter of the American College of Emergency Physicians, and was supported by Physicians Insurance A Mutual Company. If you have questions about this case, please contact Tierney Edwards, JD at tee@wsma.org.

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Published 2/08/2017

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Published 2/8/2017 

Update on WSMA priority policy as legislative session enters week five

With attention still diverted to confusion and uncertainty for health care at the federal level, news from the state legislative session remains relatively subdued. As session enters week five, lawmakers and issue advocates remain busy with hearings, as the work of policy-making slowly gathers steam.

Here is a brief high-level overview of policy the WSMA is tracking—notable highlights from last week and a look at what’s happening this week. For more information on the bills listed, visit the WSMA’s Legislative Action Center. And for real-time updates during legislative session, follow the WSMA on social media, including Twitter, Facebook and LinkedIn.

What happened last week (Jan. 30-Feb. 3)


Health care policy debated last week included:

Addressing the opioid epidemic

Restrictions on prescriptions for opioid drugsHB 1339. A prime example of “legislating the practice of medicine” is House Bill 1339. The bill, an attempt by legislators to address the opioid epidemic, would set pill count limits on certain prescriptions, which the WSMA believes would adversely affect access to care and seriously restrict a physician’s ability to provide care they deem appropriate. The WSMA testified in opposition to the bill.

Prescription monitoring program dataHB 1426 / SB 5248. Priority legislation for both the WSMA and the Washington State Hospital Association, these bills serve as alternatives to blunt measures like HB 1339. These bills would:

  • Permit local public health officers to access prescribing data to help identify at-risk patients and provide services and support.
  • Create a near-fatal “overdose notification system.”
  • Allow the DOH to provide facilities and group practices with prescribing reports for the express purpose of quality improvement, allowing them to address inappropriate prescribing in-house.

The WSMA believes these bills, drafted using feedback from physicians and other providers on the front lines of the epidemic, represent a smarter approach on behalf of the house of medicine to curb opioid abuse and overdose. More than 15 organizations/associations signed in to support these bills.

Thank you to WSMA members Drs. Scott Kennedy, Kent Hu, David Tauben and Stephen Anderson for providing testimony on these important bills.

Access to care

High-risk insurance poolHB 1338 / SB 5253. These WSMA-supported bills would allow some of Washington’s most vulnerable citizens to have health insurance through the state’s high-risk insurance pool.

Physician liability

Volk v. DeMeerleer. A work session on this far-reaching court case decision took place in the Senate Human Services, Mental Health & Housing committee on Tuesday, Jan. 31. This court case deals with a duty to warn and in what instances physicians must warn others of possible violent threats. See the Membership Memo item in this issue for an update on WSMA’s response to this onerous court decision.

Bills that passed out of committee last week:

“Tobacco 21”HB 1054. A WSMA priority public health bill, House Bill 1054 would raise the age of purchase of tobacco products to 21. The bill passed out of the House Health Care & Wellness Committee.

Interstate Medical Licensure CompactHB 1337. Another top-line WSMA bill, House Bill 1337 would expedite multi-state licensure, facilitating the practice of medicine across state lines and reducing administrative requirements. The bill, a key component of the WSMA Healthy Doctors, Healthier Patients initiative to reduce administrative burden, passed out of the House Health Care & Wellness Committee on a 15-1 vote.

What’s happening this week (Feb. 6-10)


The following bills are scheduled for hearings this week:

Reimbursement

Medicaid primary care reimbursement rateSB 5471. This WSMA-supported bill raises the Medicaid primary care rates to at least 100 percent of Medicare.

TelemedicineSB 5436 and SB 5457. Senate Bill 5436 defines “home” as “any location determined by the individual receiving the service.” Senate Bill 5457 is a parity bill that requires telemedicine to be paid at a parity to services provided in person. WSMA supports both bills.

Administrative burden

Disability parking permitsHB 1515 / SB 5195. The WSMA introduced these bills to reduce administrative requirements by allowing health care practitioners to authorize disability parking permits more appropriately. Another key bill for the WSMA Healthy Doctors, Healthier Patients initiative to reduce administrative burden.

Public health

Foundational public health servicesHB 1432 / SB 5353. These WSMA-supported bills would, among other things, create a “core public health services account,” allocating funds to deliver measurable outcomes in areas including disease control and prevention, maternal and family health, behavioral health and more.

Distracted drivingSB 5289 / HB 1371. This WSMA-supported legislation would prohibit the use of personal electronic devices while driving (with certain exemptions).

Tobacco 21SB 5025. This is the Senate companion bill to HB 1054, which passed out of committee last week.

Notable bills not yet scheduled:

  • Health care directivesSB 5478 / HB 1640. This WSMA-supported legislation would allow Washington state’s health care directive to be notarized in place of witnessing.
  • Practice of naturopathySB 5369. This WSMA-opposed bill would increase naturopaths’ scope of practice by granting full prescriptive authority for drugs in schedule III–V, subject to education and training requirements to be established by the Board of Naturopathy.
  • Bills addressing abortion – HBs 1003, 1775, 1776 and SB 5320. All of these bills would place restrictions on an abortion, whether by requiring parental notification, criminalization, or establishing reporting requirements for intended abortions. The WSMA has policy against these limitations on abortion, and therefore opposes these bills.

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Published 2/08/2017

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Published 2/8/2017 

Important update on state Clinical Data Repository

The Washington Link4Health Clinical Data Repository is a key element of the Healthier Washington initiative, and represents the state’s effort at establishing a hub of integrated physical and behavioral health information from providers’ EHRs, eventually enabling real-time electronic access by the care team. The WSMA and the Washington State Hospital Association are pleased to report we have made significant progress with the state Health Care Authority on two key issues related to the claims repository.

Regarding readiness to participate in the repository in advance of the Feb. 1 target date, we urged HCA to issue a status report to providers. HCA released an email to selected providers on Jan. 27, explaining:

“there are 11 EHR vendors serving over 150 health care organizations prepared to conduct the last step of end testing which is needed to move to production. An additional 35 vendors have all attended technical webinars and/or consulted with OneHealthPort.”

The WSMA advised HCA that some respondents to our early December survey, conducted in collaboration with MGMA Washington, reported that their EHR vendors were charging them very high one-time connection fees (ranging from $2,000-$5,000) and increased monthly service charges. HCA has now launched its own survey, “CDR Fees for EHR System Connectivity,” to gather more feedback on this concern. We strongly encourage practices to complete this very brief survey.

WSMA updated its Practice Resource Center website, including a spreadsheet of all vendors’ progress as of Jan. 6; we will update that list periodically. HCA also agreed to provide a draft work-in-progress, illustrating HCA’s activities and timelines to date and for additional future activities. (Note: That list is a static “snapshot” to illustrate this overall status more globally. For ongoing revisions over time, use the OHP website.) Practice staff should review OHP’s webpage to ensure that their EHR vendor has been working with OHP to complete the connectivity. If the vendor has not done so, contact your vendor and encourage their participation.

Regarding CDR privacy and data sensitivity, WSMA was advised that HCA has hired a privacy officer, Matthew King, JD, formerly with the state Attorney General’s office. WSMA and WSHA staff collaborated in compiling a list of questions, presented to HCA and discussed via teleconference on Jan. 27. HCA, WSMA and WSHA agreed to collaborate in preparing a Q&A document that could be shared with the provider community for educational purposes. Format could include sample “use case” scenarios, responsibility for determining/assigning “data sensitivity” to EHR records, etc. Particular attention would be directed toward the handling of clinical data on mental health and substance abuse.

The group also discussed relevant state laws, particularly RCW 70.02.050 and 70.02.230, and requirements of those RCWs, as well as referencing federal HIPAA requirements on mental health and substance abuse and the “treatment, payment and operations” (TPO) aspects of the laws. In addition, the group discussed bills now pending before the state legislature: HB 1413 and HB 1477. HCA is also working with SAMSHA on a new federal rule that could impact HCA’s redisclosure of data and may require a “consent management tool.” The group will also be addressing ways to educate the provider community on these issues.

HCA maintains a HealthIT webpage where you can subscribe to its free monthly Link4Health newsletters. For questions, contact Bob Perna at rjp@wsma.org.

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Published 2/08/2017

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WSMA presses privacy concerns as work on all-payer claims database continues

The Clinical Data Repository (as reported on in this issue) is not the only state initiative that aims to collect and make available claims data. Work continues on a second state-led initiative, the all-payer claims database (APCD); its purpose is to increase transparency in reporting of health care information and costs to the public and to providers. In recent comments to the Office of Financial Management, the state agency tasked with overseeing the development of the database, the WSMA outlined steps to protect physician and patient privacy and information while avoiding the creation of undue administrative requirements for physicians.

The OFM has selected the Center for Health Systems Effectiveness at Oregon Health & Science University as the lead organization for the claims database and is conducting rulemaking, in stages, instrumental to the database’s development and implementation. Most recently, the OFM requested a review and feedback on the privacy and security of the health care data reports that use claims data prepared by the lead organization for the legislature and the public. In our comments, submitted this month, the WSMA:

  • Strongly urged the OFM to consider the potential impact on physician and patient privacy on disclosure of claims data, which include confidential and sensitive information about physicians’ patients and the services provided.
  • Urged the OFM to create an “accuracy verification” process that is easy for physicians to engage and not so administratively burdensome that physicians, in practice, do not have an opportunity to review and comment on information before the data are made available for public consumption.
  • Urged that data measurement methodologies be based on physician and other expert input, and to facilitate apples-to-apples comparisons, methodologies should be transparent to all stakeholders.
  • Requested steps must be taken to ensure that the release of claims data does not mislead the public into making inappropriate conclusions and potentially harmful health care decisions. Reports should include detailed educational information for the public, explaining the claims data and openly addressing its limitations.

Read the full comments letter. The WSMA believes that, if constructed correctly, the APCD and associated reports will have a positive impact on the quality of health care in Washington state and will continue to bend the health care cost curve in the right direction. We will continue to monitor rulemaking and keep members abreast of developments.

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Published 2/08/2017

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Upcoming deadlines for Medicare PQRS reporting

CMS has extended the attestation deadline for providers participating in the Medicare EHR Incentive Program to Monday, March 13 at 11:59 p.m. PT. Participants must attest to the 2016 program requirements by that deadline to avoid a 2018 payment adjustment.

If you are participating in the Medicaid EHR Incentive Program, please refer to your state’s deadlines for attestation information. If you are eligible to participate in both Medicare and Medicaid incentive programs, you must demonstrate meaningful use under either Medicare or Medicaid to avoid the Medicare payment adjustment.

These attestation resources can assist you in completing the process:

For questions about the Registration and Attestation System, contact the EHR Information Center at 888.734.6433 (option 1). The center is open Monday through Friday from 6:30 a.m. to 5:30 p.m. ET.

Reporting mechanisms for PQRS include:

  • Registry reporting – A qualified registry collects clinical data from an individual or group practice and submits it to CMS for the participants
  • Electronic reporting using an EHR – Individuals and group practices can either submit data directly from their certified EHR technology (CEHRT) or submit data from their CEHRT to a qualified EHR data submission vendor. Individuals and group practices that are also eligible for the Medicare EHR Incentive Program can choose to submit their clinical quality measures (CQMs) electronically through the PQRS EHR reporting option to fulfill the CQM requirements for both PQRS and the Medicare EHR Incentive Program.
  • Qualified Clinical Data RegistryQCDR is a CMS-approved entity that collects medical and/or clinical data for the purpose of patient and disease tracking to foster improvement in the quality of care provided to patients. CMS offers more details on its QCDR webpage.
  • Group Practice Reporting Option Web Interface – An eligible group practice can participate if the practice registered for GPRO participation prior to the June 30, 2016 application deadline.
  • CMS-Certified Survey Vendor – Group practices that successfully applied for GPRO can supplement their PQRS reporting with the Consumer Assessment of Healthcare Providers and Systems (CAHPS) survey.

If you or your group report your 2016 program year data satisfactorily, you will be able to avoid a negative payment adjustment in 2018. Group practices that chose to participate in PQRS as a group were required to register by June 30, 2016. Groups who did not register can report as individuals prior to the reporting deadlines to avoid penalty.

CMS also determined that problems with recent ICD-10 code updates will impact its ability to process data for certain quality measures for the fourth quarter of 2016. CMS will not apply the 2017 or 2018 PQRS payment adjustments, as applicable, to any Eligible Professional or group practice that fails to satisfactorily report for calendar year 2016 solely as a result of the impact of ICD-10 code updates on quality data reported for the fourth quarter of 2016.

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Published 2/08/2017

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Deadline approaches for Medicaid electronic claims submission requirement

Effective April 2017, the state Health Care Authority will accept only electronic claims from providers that have never submitted electronic claims for Apple Health (Medicaid) services. If your practice hasn’t already converted to electronic claims or direct data entry submissions, it will need to transition to the new electronic claim submission standard. To assist in the transition, HCA is offering these items:

  • HCA Security Access form – The ProviderOne User Access Request form designates the “System Administrator(s)” among your staff who will help your practice access ProviderOne and submit claims.
  • List of Third Party Administrators – List of companies that are contracted with HCA to submit electronic claims on behalf of providers.

Complete and return the HCA Security Access form to: HCA IT Security, PO Box 45512, Olympia WA 98504-5512, or fax the completed forms to HCA IT Security at 360.507.9019 or send via email.

If you have received your system administrator profile and need to add additional users or add profiles for submitting claims, review these instructions prepared by the ProviderOne security team. HCA also will be scheduling a series of webinars through March 2017 to assist providers with the transition to electronic claims submission. These webinars will be recorded and archived for future retrieval. If you need further information, contact the HCA customer service center at 800.562.3022.

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Published 2/08/2017

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Published 2/8/2017 

State offers free assistance through Practice Transformation Support Hub

By 2021, delivery of primary care and behavioral health services in Washington is to be fully integrated. The state Health Care Authority will integrate financing for physical health, behavioral health and substance use disorders through the five managed care plans covering Medicaid patients.

Now is the time to begin your preparations as the health delivery system evolves toward providing care to the whole person. Free help is available! The state’s Practice Transformation Support Hub can help physicians and practice administrative staff make the transition by providing resources, tools, training, hands-on technical assistance and coaching services.

In-depth customized assistance is available to practices that enroll in the Practice Coaching and Regional Connectors program. Each primary care practice and behavioral health organization will have its own challenges in charting a course for transformation. The “Hub” has coaches and connectors who can help you assess your unique needs and connect you with the right technical assistance available in your region.

Do you need help understanding and preparing for value-based payment? Would you like free technical support to help you make the best use of EHRs and other population health tools? Do you need help understanding which of the different models of bi-directional physical and behavioral health integration is right for you? Whether you are still trying to understand practice transformation and its impact on your practice or you’re already implementing change, the Hub will meet you where you are today with a "no wrong door” approach.

To enroll or learn more, contact the Hub Help Desk at 206.288.2540 or 800.949.7536 ext. 2540 or email HubHelpDesk@qualishealth.org. The WSMA Practice Resource Center also offers educational material on value based care, Medicare MACRA and related topics.

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Published 2/08/2017

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