New Laws Impacting Practice Management

Balance Billing, HB 1688

This bill aligns the state’s Balance Billing Protection Act with the federal No Surprises Act. Among numerous provisions, the definitions of services and physicians and nonphysician licensed professionals subject to the balance billing prohibition are modified to meet standards in the federal law. The state’s arbitration system for resolving payment disputes over out-of-network care is maintained until July 1, 2023 (or a later date determined by the insurance commissioner), after which time all dispute resolution will be determined by the federal independent dispute resolution system. In limited circumstances where insurers attempt but fail to contract with a full network of physicians subject to the law, they are required to pay physicians utilized as alternatives to contracting at billed charges for three months, after which point reimbursement will be determined by the state arbitration system. An annual report on the impact of the balance billing law on insurance carrier reimbursement and contracting practices is directed to be compiled, with the first report due in December of 2022.

Balance billing laws are complex and important for those physicians and physician groups subject to them (i.e., emergency department groups and certain other physicians who provide out-of-network care at in-network hospitals and ambulatory surgical facilities). A comprehensive summary of the impact of this bill and its interaction with the federal law is too lengthy for this publication, but it is being compiled and will be disseminated via WSMA membership communications. If you are interested in regular updates on balance billing and WSMA’s work on the issue, contact Sean Graham, WSMA’s government affairs director, at sean@wsma.org.

Established Relationship for Audio-Only Telemedicine, HB 1821

This bill establishes what constitutes an “established relationship” for the purposes of insurance coverage for audio-only telemedicine services.

The WSMA has been a primary proponent of the advancement of telemedicine, advocating for policies that facilitate patient access while ensuring high-quality care. Ideally, telemedicine services should augment, rather than replace, in-person care. HB 1821 creates temporary allowance for patients to be treated over the phone after a relationship is established between the patient and physician or clinician via audio-visual telemedicine, but pursuant to WSMA advocacy the bill schedules this policy to “sunset” or end on Jan. 1, 2024.

To receive reimbursement for services provided over audio-only telemedicine at parity with in-person visits, there must be an “established relationship” with a patient. Set up a workflow that delineates behavioral health from all other services. For all services delivered via audio-only telemedicine, physicians and clinicians must have access to sufficient health records to ensure safe, effective, and appropriate care.

Other requirements for establishing a relationship differ by service type: For behavioral health services (including mental health and substance use disorder) a physician or other health care professional at the same medical group must have had at least one in-person visit or an audio/visual telemedicine visit with the patient within the past three years. This requirement may be met if a patient is referred to your practice by a physician or health care professional who has already met these requirements. For all other health care services, a physician or health care professional at the same medical group has had an in-person visit, or an audio/visual telemedicine visit with the patient within the last three years. The ability to meet this requirement utilizing audio/visual telemedicine will expire on Jan. 1, 2024. The established relationship requirement may be met if a patient is referred to your practice by a physician or health care professional who has met these requirements.

Health Care for Unaccompanied Homeless Youth, SB 5883

This bill clarifies the definition of “unaccompanied homeless youth” for the purposes of their ability to provide informed consent to receive non-emergency outpatient primary care services. The bill attempts to clarify the application of the Mature Minor Doctrine for patients, physicians, and clinicians, as it relates to homeless youth, which WSMA policy supports.

Effective June 8, 2022, unaccompanied youth who meet the definition of “homeless” from the federal McKinney-Vento law may provide informed consent for non-emergency outpatient primary care services under certain circumstances. Physicians and health care professionals may, in their discretion, require documentation that the minor patient is an unaccompanied homeless youth. Acceptable documentation includes a written or electronic statement signed under penalty of perjury by:

• Staff at a governmental or nonprofit human services agency or homeless services agency;
• An attorney representing the minor patient; or
• An adult relative of the minor patient or other adult with knowledge of the minor patient and the minor patient's housing situation.

Physicians and clinicians may, but are not required to, rely on the representations or declaration stating that the patient is an unaccompanied homeless youth, if the physician or clinician does not have actual notice that the statement is false. The law provides immunity from legal and disciplinary actions for physicians and clinicians when reliance is based on a declaration signed under penalty of perjury or is based on the statement of a minor patient regarding their housing situation.

During a visit with an unaccompanied homeless youth, primary care physicians and clinicians under RCW 74.09.010 must use existing best practices that align with any guidelines developed by the Office of Crime Victims Advocacy and the Commercially Sexually Exploited Children Statewide Coordinating Committee designed to identify: (a) whether the unaccompanied homeless youth may be victim of human trafficking; and (b) potential referral to additional services, the Department of Children, Youth, and Families, or law enforcement.

PPE Reimbursement, SB 5169

This WSMA-championed legislation requires state-regulated commercial insurance carriers to reimburse for personal protective equipment cost increases due to the COVID-19 pandemic. For the duration of the federal public health emergency, a physician or nonphysician practitioner may use the 99072 CPT code for $6.57 in reimbursement per patient encounter in which health care services were provided in person. The WSMA recommends billing the code liberally in appropriate circumstances as those health plans which are not subject to the law may opt to reimburse the code. The bill took effect when it was signed by the governor on April 16, 2021.

Audio-only Telemedicine, HB 1196

This WSMA-championed legislation requires insurers to provide coverage and reimbursement for audio-only telemedicine services at parity with in-person visits. To be reimbursed, the service provided via audio-only telemedicine technologies must meet similar requirements as required for audio/visual telemedicine, including:

• The service is medically necessary and can be safely and effectively provided over audio-only telemedicine.
• The service is an essential health benefit under the Affordable Care Act.
• The technology meets state and federal standards governing privacy and security of protected health information.
• The patient consents to billing before the service is provided.

The bill takes effect on July 25, 2021, with the exception of a provision that requires a patient to have an in-person “established relationship” with a physician or a clinic for the coverage and payment elements to be effective, which takes effect beginning January 2023. HB 1196 puts in place similar coverage and parity requirements currently in effect for audio-only telemedicine via the state Office of the Insurance Commissioner’s COVID-19 emergency orders.

Medical Assistants, HB 1378

Allows a medical assistant assisting with a telemedicine visit to be supervised by a practitioner remotely through interactive audio and video telemedicine technology. A medical assistant and a patient can be in one location while the practitioner is supervising through audio/visual technology at a different location. The legislation includes an emergency clause and is now in effect.

Mental Health Advance Directives, SB 5370

Updates the mental health advance directive form and underlying law. Updates include:

• Streamlining and simplifying language in the form.
• Adding a section for the principal to describe what works for the principal and the principal’s diagnoses, medications, and best approach to treatment.
• Granting power to the agent to act as the principal’s personal representative for the purpose of HIPAA.

Additionally, substance use disorder professionals may participate in incapacity determinations, and the bill permits a notary to make acknowledgment of a mental health advance directive instead of requiring two witnesses. This measure takes effect on July 25, 2021. If your patients regularly utilize mental health directives, please review the legislation, as the form itself and the requirements for using the form will be changing as detailed above.

Telemedicine Consultations, SB 5423

Permits a physician who is licensed in Washington state to utilize telemedicine to consult with a physician licensed in another state regarding the diagnosis or treatment of a patient located in Washington state. This measure takes effect on July 25, 2021.

Capacity and Informed Consent, SB 5185

Modifies the standard for informed consent as it applies to an individual’s capacity to make health care decisions. A person who is of the age of consent to make a health care decision is presumed to have capacity. The presumption of capacity may be overcome if the physician reasonably determines the person lacks the capacity to make a particular health care decision due to a demonstrated inability to understand and appreciate the nature and consequences of a health care condition or proposed treatment. The bill requires the physician or nonphysician practitioner to document the basis for the determination of capacity in the medical record. The legislation takes effect Jan. 1, 2022. The WSMA recommends reviewing the legislation and consulting with your legal counsel should these issues arise in your practice.

Naloxone Access, SB 5195

Requires hospital emergency departments and certain community behavioral health agencies to provide opioid overdose reversal medication to a patient with symptoms of an opioid overdose or opioid use disorder. The WSMA was successful in securing an amendment to the bill protecting the ability for physicians to exercise clinical and professional judgement when determining if dispensing overdose reversal medication is appropriate. The measure includes a provision of a state-run bulk purchasing and distribution program to address potential reimbursement gaps for the medication. These changes take effect Jan. 1, 2022.

Health Care Workers and Presumptive Benefits During a Public Health Emergency, SB 5190

Provides health care workers with presumptive benefits during a public health emergency. Health care employees who have had to leave work to quarantine during a public health emergency will be eligible for unemployment insurance benefits and worker’s compensation coverage because a presumption is established that infectious diseases subject to a public health emergency are occupational diseases contracted at the workplace.

The bill contains an emergency clause and takes effect immediately. For more detailed information on how employees can utilize these benefits, please review the legislation.

Health Equity CME, SB 5229

This WSMA-championed legislation requires the boards and commissions of health care professionals with existing CME requirements licensed under Title 18 of the Revised Code of Washington (RCW) to adopt rules requiring health equity training at least once every four years. The course may teach skills that enable a health care professional to effectively care for patients from diverse cultures, groups, and communities, varying in race, ethnicity, gender identity, sexuality, religion, age, ability, and socioeconomic status. The regulatory authorities will establish the conditions in which licensees will meet this requirement, which goes into effect Jan. 1, 2024, and provide licensees with information about available courses by July 1, 2023, in advance of the requirement coming online.

Health Emergency Labor Standards Act, SB 5115

Establishes health emergency labor standards. Standards including:

• Creating an occupational disease presumption for certain front-line employees during a public health emergency for the purposes of workers’ compensation (this provision does not apply to health care workers, which are separately addressed in SB 5190).
• Requiring employers with 50 or more employees to notify the Department of Labor & Industries when a certain percentage of their workforce becomes infected during a public health emergency.
• Requiring employers to provide written notice to employees and their union of potential exposure to infectious disease during the public health emergency.
• Prohibiting discrimination against an employee who is high risk for seeking accommodation that protects them from the disease or using all available leave options if no accommodation is reasonable.

The bill contains an emergency clause and takes effect immediately. The WSMA recommends practice managers closely review this legislation.

COVID-19 Liability, SB 5271

Amends the necessary elements of proof of injury due to the COVID-19 pandemic. Amended elements include:

• The physician or nonphysician practitioner failed to exercise the degree of care, skill, and learning expected of a reasonably prudent practitioner in the profession, in the state of Washington, acting in similar circumstances and at the same time; and
• Such a failure to exercise the standard of care was the primary cause of injury.
• When determining whether a physician or nonphysician practitioner failed to follow the accepted standard of care during the state of emergency, the court must consider if:
• The physician or nonphysician practitioner was acting in good faith based on guidance, direction, or recommendations from federal, state, or local officials in response to the pandemic and applicable to the physician or nonphysician practitioner;
• or the injury was due to a lack of resources directly attributable to the COVID-19 pandemic.

The bill includes an emergency clause and takes effect immediately. The WSMA recommends reviewing this legislation. If you have questions about what these changes mean for your liability, please contact your malpractice provider or legal counsel.

Pregnancy and Miscarriage-Related Care, SB 5140

Prohibits health care facilities from restricting physician or nonphysician practitioners from providing services related to pregnancy complications. If a practitioner is acting in good faith, within their scope of practice, education, training, and experience, and within the accepted standard of care, a health care facility may not prohibit the physician or nonphysician practitioner’s provision of health care services related to complications of pregnancy in cases when not providing the service would:

• Violate the accepted standard of care.
• Pose a risk to the patient’s life or irreversible complications.
• Cause impairment to the patient’s body.

Health care services related to complications of pregnancy include, but are not limited to, services related to miscarriage management and treatment for ectopic pregnancies. This measure takes effect on July 25, 2021.

Health Insurance Discrimination, SB 5313

Establishes that health carriers and the state Health Care Authority may not deny coverage for medically necessary gender-affirming treatment or apply blanket exclusions to gender-affirming treatment. It also requires health carriers and the HCA to ensure access to medically necessary gender-affirming treatment. The bill takes effect on July 25, 2021. If your practice provides these services, please consider reviewing SB 5313 as the requirements for state-regulated health insurance plans will change.