Governor’s Proclamation on OPMA & PRA for Public Hospital Districts

Governor Inslee issued Proclamation 20-28 on Tuesday, March 24th, suspending portions of the Open Public Meetings Act (OPMA) and the Public Records Act (PRA).  Below is information about what the Proclamation means for public hospital districts and other agencies subject to the OPMA and PRA.

With respect to the OPMA, the Governor’s Proclamation can be summarized as follows:

  1. Public agencies, including public hospital districts, are temporarily prohibited from holding in-person meetings with the public present.
  2. Meetings can be held with all members of the governing body and staff participating remotely as long as there is an option for the public to attend the proceedings through, at a minimum, telephonic access.
    • Other technology may also be used, but a call-in number/phone access is required.
    • If oral public comment is allowed, the technology used must enable all persons attending the meeting remotely to hear each other, not just hear members of the governing body.
    • Protocols and features can be used to control who is speaking when and to prevent multiple attendees from speaking at the same time.
  1. At any meeting conducted under these procedures, action can be taken only on “necessary and routine matters” or “matters necessary to respond to the COVID-19 outbreak and the current public health emergency.”
    • The bottom line is that agencies can conduct business they need to get done, but should hold off on taking action on non-urgent matters or matters not typically considered under normal policies, practices and procedures.
    • For public hospital districts, we interpret this requirement to allow the board to take action on items such as time-sensitive budgetary and financial issues, quality and credentialing issues, and other matters that must be addressed in a timely manner and are performed in the regular course of procedure.
    • Of course, any matter necessary to respond to the COVID-19 emergency may also be included on meeting agendas.
    • Major new policy initiatives or programs, activity that can be put off to another day, and/or matters that require some new procedure the public is not familiar with should be deferred unless they are matters that would be deemed necessary to address COVID-19.
    • The AGO issued explanatory guidance on these issues that should also be consulted.
  1. PHDs will need to carefully evaluate items that may be placed on meeting agendas or proposed for resolution for compliance with the “necessary and routine” requirement.
  2. Various references in the OPMA that imply that a physical location is required for meetings are suspended, i.e., RCW 42.30.030 (all persons shall be allowed to attend), RCW 42.30.040 (attendance at a meeting cannot be conditioned), RCW 42.30.050 (disruptive persons can be removed from the room – the proclamation deletes the word “room” but still allows disruptive people to be removed from the meeting), and RCW 42.30.070 (the statute is revised to allow the governing body to provide for a meeting other than at a “site” if the meeting will occur at other than the regular meeting site).
  3. Some of the notice provisions in the OPMA are suspended, i.e., RCW 42.30.075 (which requires any change in the regular meeting schedule to be published in advance of the change); RCW 42.30.080(2)(c)  (which requires notice of a special meeting to be posted at the entrance to the building in which the regular meeting is located); and RCW 42.30.090 (which requires notice or adjourned or continued meetings to be posted on the door of the building in which the regular meeting is held).
    • The AGO recommends that at a minimum, an agency’s online agenda should specify how the public may remotely attend the meeting, and the agency should also provide this information on its website, via email, or by other relevant means.
  1. These provisions only apply through April 23, 2020.  This is because the Governor only has the authority under his emergency powers to suspend the provisions of state law for 30 days, after which the legislature must approve any extension.  If the legislature does not approve an extension, the Proclamation will expire and the OPMA will be back in full force and effect.

With respect to the PRA, the Governor has waived and suspended certain provisions as follows:

  1. No in-person copying of public records or in-person submittal of a records request is allowed.  The Proclamation suspends the requirement of RCW 42.56.080(2) to make agency facilities available to copy records and to accept PRA requests in person during normal office hours.
  2. No in-person inspection of public records is allowed.  The proclamation suspends the requirement of RCW 42.56.090 that in-person inspection of records be allowed during regular business hours.
  3. The requirement in RCW 42.56.100 to provide “full” public access to public records is suspended.
  4. The requirement in RCW 42.56.520(1) to respond to public records requests within five business days is suspended.
  5. All other requirements of the PRA remain in effect, i.e., public agencies must still honor public records requests received by means other than in person and must still provide copies, etc. when requested to do so.
  6. These provisions also only apply through April 23, 2020.

OMW’s Healthcare and Municipal teams are here to help public hospital districts navigate these issues.  Please contact Maddie Haller at (206) 447-2232 or at mhaller@omwlaw.com with questions.

COVID-19 and Telehealth: Understanding the New Medicare and HIPAA Waivers

In response to the COVID-19 national emergency, the federal government has put forth temporary waivers to certain HIPAA and Medicare requirements to promote the use of telehealth.  These waivers provide an opportunity for health care providers to start or expand their telehealth service offerings to patients.  Here are a few key takeaways from these waivers that are described in detail below:

  • Medicare: During the COVID-19 national emergency, Medicare will pay for telehealth services without regard to where the patient is located. The patient could even be located inside his or her home during a telehealth session.
  • HIPAA: During the COVID-19 national emergency, providers can provide, without the threat of penalties from the Office of Civil Rights, telehealth services through common video conferencing vendors (e.g. FaceTime, Skype, etc.) who may not comply with HIPAA requirements.
  • Next Steps: If a provider wants to start or expand telehealth service offerings to patients, it is important to be mindful of the various legal issues described below, including appropriate licensure, informed consent, and payor reimbursement.

Expansion of Telehealth Reimbursement under Medicare

Starting on March 6, 2020 and continuing for the duration of the COVID-19 national emergency, Medicare will pay for professional telehealth services furnished to Medicare patients without regard to where the patient is located. A patient can receive telehealth services in any part of the country and from any location, including the patient’s home.  This is a significant change from prior Medicare telehealth billing requirements, which required patients to be located within a designated rural area and to receive telehealth services only in certain types of medical facilities.

Medicare will pay for telehealth services under the Physician Fee Schedule at the same amount as in-person services.  Patients are still subject to Medicare deductibles and coinsurance, but the waiver allows providers to reduce or waive cost-sharing requirements for telehealth services paid by Medicare.

To ensure that telehealth services qualify for Medicare reimbursement, the patient and provider must communicate with each other using an interactive audio and video telecommunications system that permits real-time communication between the “distant site” (where the provider is located) and the “originating site” (where the patient is located). Services such as Zoom, FaceTime, and Skype satisfy this requirement.

Medicare continues to restrict the types of “distant site” providers that may engage in telehealth services to: licensed physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians, and nutrition professionals.  Unfortunately, the list of professionals has not been broadened to include other licensees, such as mental health counselors and marriage and family therapists. As discussed below, Medicaid and some private commercial payors do not have these same licensure restrictions.

Changes to HIPAA Telehealth Requirements

To encourage the use of telehealth technology, the Office of Civil Rights (OCR) will, during the COVID-19 national emergency, waive HIPAA penalties against health care providers related to the good faith provision of telehealth services to patients through common video communication technology such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, and Skype. As described above, Medicare will pay for telehealth services provided via such systems if they permit real-time audio and video communication. However, OCR emphasizes that “public facing” video communication applications such as Facebook Live, Twitch, and TikTok may not be used by providers to render telehealth services to patients. 

Prior to the OCR’s waiver, providers faced HIPAA compliance issues in using popular video conferencing technology to provide telehealth services to patients.  Many video conferencing technology vendors will not represent that they comply with HIPAA security safeguards and refuse to sign a HIPAA business associate agreement (BAA).

Under the waiver, OCR states that it will not impose penalties against providers for the lack of a BAA with a video conferencing vendor or for noncompliance with HIPAA privacy or security requirements related to the good faith provision of telehealth during the COVID-19 national emergency. OCR does, however, encourage providers to notify patients that the use of video conferencing applications could cause risks to the privacy of patient information.  OCR also emphasizes that providers should also use any encryption technology if it is available with the video conferencing application.

Although OCR will not penalize providers who lack a BAA with telehealth technology vendors during the COVID-19 national emergency, OCR acknowledges that providers may want to enter into BAAs with vendors to ensure that the vendors take HIPAA requirements seriously. Despite the OCR’s waiver of penalties, patients could still file a lawsuit against a provider related to a security or privacy breach, so entering into a BAA with a telehealth vendor can be an important risk management strategy. To assist providers, OCR included a list of telehealth technology vendors who represent that they will enter into a BAA with providers:

  • Skype for Business
  • Updox
  • VSee
  • Zoom for Healthcare
  • me
  • Google G Suite Hangouts Meet

It is important to note that substance abuse providers who are subject to the confidentiality requirements of 42 CFR Part 2 need to continue entering into “Qualified Service Organization (QSO)” contracts with telehealth vendors.  SAMHSA, the agency that oversees 42 CFR Part 2, has not issued waivers to 42 CFR Part 2 QSO requirements.

Next Steps

The waivers to the Medicare and HIPAA requirements related to telehealth should be welcomed by health care providers. The waivers provide an opportunity for providers to continue treating their patients while limiting potential exposure to the novel coronavirus.

If you, as a Washington State healthcare provider, want to start providing telehealth services to patients, or if you are already providing telehealth services to patients, here are few concepts to consider:

  • Free Telehealth Technology: To encourage the use of telehealth, the Washington State Health Care Authority is providing a certain number of licenses to the Zoom video conferencing service at no charge. Information on applying for one of these licenses is located here: https://www.hca.wa.gov/billers-providers-partners/prior-authorization-claims-and-billing/request-zoom-license-connect. It appears that HCA is intending that these licenses be used by small providers.
  • Licensure: Under Washington State Medical Commission guidelines, a provider using telehealth to practice medicine on Washington State patients must be licensed to practice medicine in Washington. For example, a provider licensed in Oregon cannot provide telehealth services to a patient located in Washington.  Similarly, a provider licensed in Washington cannot provide telehealth services to a patient located in Oregon. However, a Washington provider may render telehealth services to a patient located outside of Washington if the patient has already met in-person with the provider, and the telehealth services are limited to clarification, advice, or follow-up related to the in-person visit.

Exception: During the COVID-19 emergency, the Washington State Department of Health (“DOH”) has stated that a health care entity in Washington State (e.g. hospital) may offer telehealth services to Washington patients that are provided by out-of-state providers employed by the entity if: (1) the providers do not have a pre-existing employment relationship with the entity, and (2) complete the application to register as an Emergency Volunteer Health Practitioner with the DOH.  More information about this process is here:

https://www.doh.wa.gov/Emergencies/NovelCoronavirusOutbreak2020/HealthcareProviders/EmergencyVolunteerHealthPractitioners.

  • HIPAA Requirements: As stated above, OCR is encouraging the use of telehealth services even if a BAA may not be in place between the provider and telehealth vendor. However, providers should still consider asking vendors to sign BAAs for risk management purposes because they contain important protections for patient information.  Providers should also try to provide a HIPAA Notice of Privacy Practices (“NPP”) to new telehealth patients that the provider has not seen in-person. But, as described above, OCR will not penalize providers for failing to comply with HIPAA requirements such as providing an NPP to a telehealth patient during the COVID-19 national emergency.
  • Informed Consent: Prior to rendering telehealth services to a patient, a provider should obtain the patient’s written informed consent to the telehealth services. An informed consent form should describe the services to be rendered, the anticipated results and benefits of the services, the risks related to the services, and any alternatives to the telehealth services. For the sake of efficiency, providers can ask patients to send a signed copy of the form via email (e.g. patient takes a picture of the form and then emails it with a smartphone) or via fax. Providers can also have patients sign the form via an electronic signature platform, such as Docusign.
  • New Patients: If a provider is seeing a new patient via telehealth, the provider should ensure that, in addition to an informed consent form, the patient completes the intake paperwork that new in-person patients must complete. The paperwork should include a demographic form where the patient provides contact information and a description of his or her medical problem, a financial agreement that describes the provider’s payment policies, and, as described above, an NPP.  Similar to the informed consent form, patients can submit the completed paperwork to providers electronically.
  • Health Insurance Other Than Medicare: The Medicare waiver does not apply to telehealth services provided to beneficiaries of Medicaid or commercial health insurance. However, the Washington State Medicaid program will cover telehealth services delivered by any provider licensed in Washington State that are: (1) within the provider’s scope of practice, and (2) provided via HIPAA-compliant, interactive, real-time audio and video telecommunications (including web- based applications). Based on the OCR’s HIPAA enforcement waiver, these systems appear to include common videoconferencing systems like Apple FaceTime, Zoom, and Skype.

Similar to the Medicare waiver, Washington State law requires Medicaid and all commercial insurers to reimburse any licensed Washington health care provider for medically necessary telehealth services without regard to where the patient is located (e.g. patient’s home).  However, commercial insurers have different coverage policies related to telehealth, so it is important for providers to verify coverage requirements with each of their contracted insurers.

The Medicare and HIPAA waivers provide important opportunities for providers to utilize telehealth services during the COVID-19 national emergency. Please reach out to Casey Moriarty at 206-447-7000 if you have any questions.

Resources and Regulations for Coronavirus-Related Leaves of Absence and Salary Deductions

The coronavirus pandemic has created stressful times for many lately. With Governor Inslee’s order to temporarily close all restaurants, bars, clubs, and a range of other facilities, including hair and nail salons, health and fitness clubs, and theaters, the stress on Washington State employees and employers has been compounded by the myriad questions related to these changing circumstances and their relative rights and responsibilities. To further contribute to the confusion, as these situations have changed, the laws and related advice for employers have changed, and continue to change, on an almost-daily basis. As a result, the resources and regulations listed here should be relied upon with the understanding that they are subject to change as the coronavirus situation changes.

Available Leave for Employees

The Employment Security Department summarizes the types of leave currently applicable to employees in Washington State for different coronavirus scenarios. This page includes a Q&A for workers that addresses various scenarios that may offer helpful solutions to both employers and employees. For example, it considers an employee’s application for unemployment benefits where they were temporarily laid off as the result of reduced business related to the temporary shut down.

Many employees are facing a need to stay home due to the closure of their child’s school. School closure is an authorized purpose for using employer-paid sick leave under both Washington State law and Seattle ordinance (and in some other cities) if the school attended by the employee’s child was ordered closed by a public official for health care reasons: click here to see City ordinances and click here to see State ordinances. However, employees who stay home because of a school closure are not entitled to leave under the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), or Paid Family Medical Leave (PFML).

See this page for qualifying events under the State’s new PFML. See this page for qualifying events under the FMLA. Leave for a school closure also is not available as a reasonable accommodation under the ADA because the employee does not have a disability.

Exempt Employees & Deductions from Salary

There are also some unique considerations for employers whose exempt employees either take time off for personal reasons (e.g., coronavirus-related reasons that do not qualify for paid leave) or because they have exhausted their leave banks. Deductions from pay for exempt employees are covered by WAC 296-128-532, which states, in part:

Deductions for salaried, exempt employees.

(1) When does this section apply? This section applies to any employee who is paid on a salary basis and who meets the definitions of executive, administrative, or professional.

(2) What does salary basis mean? Salary basis is where an employee regularly receives for each pay period of one week or longer (but not to exceed one month) a predetermined monetary amount (the salary) consisting of all or part of his or her compensation, which amount will not be less than required to be paid pursuant to WAC 296-128-510 through 296-128-530. The salary shall not be subject to deduction because of variations in the quantity or quality of the work performed, except as provided in this section. Under RCW 49.46.130(2)(a), salaried employees may receive additional compensation or paid time off and still be considered exempt.

(3) When are deductions from salary allowed?

(a) If the employee performs no work in a particular week, regardless of the circumstances, the employer may deduct for the entire week.

(b) When the employee takes at least a whole day off for personal reasons other than sickness or accident, the employer may deduct in full day increments.

(c) Deductions for absences due to sickness or disability may be made in full day increments if the deduction is made according to the employer’s bona fide plan, policy or practice of providing paid sick and disability leave (other than industrial accidents or disability).

(i) Deductions are permitted when either leave is exhausted or the employee has not yet qualified under the plan.

(ii) Deductions are permitted even if an employee receives compensation under that plan or under workers’ compensation laws.

(d) When an employee is eligible for the federal Family and Medical Leave Act 29 U.S.C. Sec. 2611 et seq., deductions may be made for partial day absences due to leave taken according to that law and the applicable provisions in chapter 49.78 RCW.

(e) In the first and final week of employment, an employee’s salary may be prorated for the actual days worked. …

(g) Deductions are allowed when authorized under RCW 49.48.010, 49.52.060, or WAC 296-126-025.

(4) What are improper deductions from salary?

(a) Deductions are not permitted for partial days of work, except as permitted by subsection (3)(d) of this section or by WAC 296-128-533.

(b) Deductions are not permitted for lack of work for any amount of time less than a full week. …

(d) Deductions are not permitted for absences due to sickness or disability if the employer does not have a bona fide plan, policy or practice in place for sick or disability leave.

(e) Any other deductions not allowed under subsection (3) of this section.

(5) Is a “window of correction” permitted? A limited window of correction will be permitted when an improper deduction is shown to be infrequent and inadvertent and the employer immediately begins taking corrective steps to promptly resolve the improper deduction when brought to the attention of the supervisor or other appropriate representative of the employer. Such corrections will be allowed only to the extent that the deduction is not due to lack of work or part of a pattern of the same or substantially similar deductions.

(6) What deductions may be made from leave banks?

(a) Deductions may be made from compensatory time in any increment.

(b) Deductions may be made from bona fide leave banks in partial or full day increments. However, partial day deductions may be made only on the express or implied request of the employee for time off from work. Leave bank deductions may not be made for less than one hour.

A “bona fide leave bank” is a benefit provided to employees in the case of absence from work due to sickness or personal time off, including vacation. It must be in writing and contained in contract or agreement, or in a written policy that is distributed to employees. A leave bank policy, or a leave bank provision in a contract or agreement, is not “bona fide” if it is used as a subterfuge to circumvent or evade the requirements of this regulation.

(c) When leave banks are exhausted, deductions from salary may not be made, except as permitted in subsection (3) of this section.

This is not legal advice. Please consult your attorney for legal counsel, or reach out to our attorneys at (206) 447-7000. OMW Employment Attorneys have also been advising many employers on pay cuts and on the different types of layoff programs that are currently available, as well as on the recommendations for retailers, service providers, and daycares. We understand that this is a stressful situation and we are happy to talk to you or your clients about how to handle these complicated issues in this time of uncertainty. Please do not hesitate to reach out to one of us.

Three Members Join Ogden Murphy Wallace

(Teresa R. Byers, Partner)

Seattle, Wash. (March 2, 2020) Effective March 2, 2020, three new members will be joining Ogden Murphy Wallace P.L.L.C. in its Seattle office: Teresa R. Byers, Bruce A. McDermott, and Daniel J. Vecchio.  All three attorneys were formerly with Foster Garvey P.C./Garvey Schubert Barer. With the addition of these three new members, Ogden Murphy Wallace’s total headcount (Seattle and Wenatchee) will come to about 60 attorneys. The addition of these new attorneys expands Ogden Murphy Wallace’s existing Trusts & Estates planning practice area and adds a highly regarded Trust and Estates litigation team as well. With over 110 years of firm history, Ogden Murphy Wallace has been a leading regional law firm with origins deeply rooted in the Pacific Northwest. By growing its team, Ogden Murphy Wallace maintains its standing as one of the top regional law firms (headquartered and offices in the Pacific Northwest only) in the market.

(Bruce A. McDermott, Partner)

Teresa R. Byers – Teresa’s practice includes trust & estates litigation, estate planning, federal tax, and charitable & tax-exempt organizations.

Bruce A. McDermott – Bruce’s practice focuses on trust & estates litigation, commercial litigation, banking litigation, antitrust, and intellectual property. His intellectual property experience involves litigation in patent, trademark, copyright, and trade dress infringement.

Daniel J. Vecchio – Dan’s practice emphasizes trusts & estates litigation, bankruptcy & creditor’s rights, and complex commercial litigation. He has represented clients in a variety of matters in Washington and California, including both beneficiaries and trustees in trust disputes and both creditors and debtors in Chapter 11 bankruptcy proceedings.

(Daniel J. Vecchio, Partner)

“Ogden Murphy Wallace is a firm that has always focused on a strong, common culture that promotes collaboration, between and among both attorneys and staff, excellent client service, and provides the highest quality legal services using a team approach,” said Don Black, Chair at Ogden Murphy Wallace. “The addition of Bruce, Teresa and Dan, who share in these values, will only strengthen our culture while also providing new perspectives in our practices. We are thrilled to have them joining the OMW team.”

“We are excited to become an integrated part of the Ogden Murphy Wallace team,” said Bruce McDermott, former Principal at Foster Garvey. “Teresa, Dan, our staff, and I believe that we are a great for each other, culturally and professionally.”

The new hires will all work out of OMW’s Downtown Seattle office.