Proposed DOH Mandatory Reporting Rules--Chapter 246-16 WAC
As expected, the Department of Health is moving forward toward adoption of regulations requiring licensed health care practitioners and others to report unprofessional conduct. On February 6, 2008, the Department gave formal notice of its intent to adopt rules. Undoubtedly in response to the criticisms levied at the time, the proposed rules contain some significant changes from the draft rules that were circulated in December 2007, including:

• License Holders: The requirement that one license holder must report another whenever there has been a "determination or finding" of unprofessional conduct has been clarified. The proposed rules now state that a report is required only after a final decision that a license holder has harmed a patient or has caused an unreasonable risk of harm to a patient. Other problematic aspects remain, however; e.g., the requirement to report all criminal convictions for felonies or gross misdemeanors (regardless of bearing on the practitioner's fitness to practice), the requirement to report any licensed provider who may not be able to practice "with reasonable skill and safety due to a mental or physical condition," and the lack of clarification that peer review committee members are not required to make a report if the institution with which they are associated submits a report.
  
  
• The problematic aspects of the requirement to report another practitioner have been lessened somewhat by the addition of language that triggers reporting based on "actual knowledge" and not merely "information." Taken together, these revisions (i) eliminate the requirement that a license holder must report based on a subjective belief that another practitioner has committed unprofessional conduct and (ii) aligns the proposed rules with current peer review reporting requirements that do not require reporting of unprofessional conduct while the "investigative phase" of the committee's work is ongoing (RCW 18.130.070). Unfortunately, the Department has not seen fit to address similar problems with the requirement to report impaired practitioners. The revised language still does not define "mental or physical condition" or the concept of "successful management." Thus, the imprecise language appears to permit subjective interpretation on what constitutes "success" and whether a "condition" may include, for example, the effects of aging.
  
  
  • The requirement that providers report concerns about other practitioners' ability to practice safely continues to have unexpectedly broad coverage:
    
    
  • It applies to license holders who are bound by the strict requirements of 42 CFR Part II that govern drug and alcohol treatment programs, which do not permit such reports.
    
    
  • It imposes a reporting obligation on individual license holders at organizations that are not otherwise required to report, e.g. VA staff members or peer review committee members in groups or clinics that maintain coordinated quality improvement programs.
  
  
  
• Health Care Institutions: Professional associations and societies have been removed as mandatory reporting entities, but obligations remain as to "health care institutions" (such as hospitals), insurers, and peer review groups. The proposed rules require the CEO of a health care institution to report whenever a practitioner's "services are terminated or restricted" because of harm or unreasonable risk of harm to a patient, ..." Thus, they require a report when a contract has been terminated, even though no investigation has been conducted. A CEO also must make a report regarding the presence of an "unreasonable risk of harm ... due to a physical or mental condition." So far, the Department has been unwilling to define these terms, thereby creating uncertainty as to whether institutions must report practitioners based on mere suspicion or whether the institution can await the outcome of its QI/QA/credentialing process before it is obligated to report.

The proposed rules are available on the Department's website at: www.doh.wa.gov/hsqa/hpqa/HPQAManRep/documents/draftrules.pdf. Comments may be submitted by using the Department's website: www3.doh.wa.gov or writing to Margaret Gilbert, Senior Staff Attorney, margaret.gilbert@doh.wa.gov. Comments are due by March 4, 2008. A public hearing to take further comments is scheduled for March 12, 2008 at 9:00 AM at:

Department of Health
Point Plaza East Room 139
310 Israel Rd SE
Tumwater, WA 98501

We hope that the Department will address these remaining problems before it adopts final rules, which is expected to occur on March 31, 2008. Please feel free to contact Mike Madden (mmadden@bbllaw.com); Terri Rambosek (trambosek@bbllaw.com); or Laura Dunlop (ldunlop@bbllaw.com) of Bennett Bigelow & Leedom, P.S. at 206-622-5511 should you have any questions.