New Washington State Laws Relating to Reproductive Health Services and Gender Affirming Care

 

To:	Rural Chief Executive Officers, Chief Medical Officers, Chief Nursing Officers, Legal Counsel, and Government Affairs Leaders Please forward to risk and compliance staff
Staff Contact:	Katerina LaMarche, JD, Policy Director katerinal@wsha.org | (206) 216-2505
Subject:	New Washington State Laws Relating to Reproductive Health Services and Gender Affirming Care

 

Purpose

The purpose of this bulletin is to inform hospitals of two new laws enacted by the Washington State Legislature in 2023 that pertain to receiving or providing reproductive health care services and gender-affirming treatment. Both laws were passed in response to the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which held that the United States Constitution does not confer a right to abortion, leaving states free to make their own laws. Washington’s laws protect the right to access services in this state and respond to the development of laws in other states that could affect the rights of Washington patients and providers. They also respond to the growing trend in some states to restrict access to gender affirming care by protecting Washington providers and patients engaged in health care services in Washington state.

The two laws discussed in this bulletin reflect Washington State’s protective approach to reproductive health care and gender affirming care:

1. HB 1469: Protecting access to reproductive health care services and gender-affirming treatment in Washington state (aka the Shield Law)
   Effective April 27, 2023, the Shield Law provides protections for the receipt or provision of reproductive health care services or gender-affirming treatment in Washington state.

2. HB 1340: Disciplinary Protections for Providers
   Effective April 27, 2023, HB 1340 establishes that health care provider participation in reproductive health care services or gender affirming treatment does not constitute unprofessional conduct under the Uniform Disciplinary Act (UDA), with some exceptions.

Applicability/Scope
Shield Law (HB 1469)
This law broadly applies to individuals and entities who provide, receive, attempt to provide or receive, assist in the provision or receipt, or the attempted provision or receipt of protected health care services (reproductive health services and gender affirming care) that are lawful in Washington state. This includes hospitals and health care providers who provide protected health care services to patients, or maintain records related to the provision or receipt of protected health care services.

The Shield Law protects the provision, receipt, and insurance coverage of protected health care services regardless of the location of the person receiving the services. The Shield Law also establishes that a law of another state that authorizes the imposition of civil or criminal penalties or liability related to the provision or receipt of protected health care services that are lawful in Washington is against the public policy of this state.

Disciplinary Protections for Providers (HB 1340)
This applies to all license holders regulated by the Washington State Uniform Disciplinary Act who provide, authorize, recommend, aid, refer, or participate in any reproductive health care services or gender affirming treatment consistent with the standard of care in Washington.

Recommendations

1. Review this bulletin, HB 1469, and HB 1340 to understand the changes made by the Shield Law and to the Washington State Uniform Disciplinary Act.
2. For public hospital districts: evaluate and update your internal processes and policies related to cooperating with or providing information to a federal law enforcement agency, to the extent permitted by law, or to an individual, agency, commission, board, or department from out-of-state. Ensure employees responsible for cooperating with or disseminating information to a federal law enforcement agency or out-of-state entity are aware of the law change. Legal counsel, along with risk and compliance, should establish a process on how to determine whether the enforcement or investigation is based on an out-of-state civil or criminal proceeding that is related to protected health care services and, if so, how to respond to requests for cooperation or information. Evaluate and update your internal processes and policies to respond to legal proceedings such as subpoenas for documents, witness summons, and records requests.
3. Ensure that employees responsible for responding to subpoenas are aware of the law change. Legal counsel, along with risk and compliance, should establish a process to review subpoenas and other legal requests to determine if the request includes documents, information, or testimony related to protected health services and, if so, whether the request complies with the Shield Law and if response is required.
4. Be aware of your patient’s location, the location of the patient when care is provided, and applicable laws. This is especially true for providers who work in multiple locations or who have patients who live in other states.
5. Consider disseminating information about the changes in law to relevant employees and health care providers.
6. Ensure that changes to the Washington State Uniform Disciplinary Act are reflected in policy for privileging processes.

Overview
Shield Law (HB 1469)
HB 1469 establishes in law protection of the provision, receipt, and insurance coverage of protected health care services regardless of the location of the person receiving the services. The law “shields” individuals who provide, obtain, or support reproductive and gender-affirming care.

The Shield Law restricts compliance with out-of-state legal processes that are related to the provision or receipt of protected health care services in Washington. Public employees and officials are prevented from cooperating if other states attempt to investigate or prosecute Washington providers or patients for the provision or receipt of protected health care services. The bill also establishes a new cause of action for “interference with protected health care services.” The Washington State Attorney General’s Office may take action to enjoin violation of the Shield Law. Finally, a protected health care services provider, employee, or affiliate, and any family members residing with the person, who attests that they are the target of threats or harassment may apply to the state for address confidentiality.

The major provisions of the law include:

1. 1. Creates new and expansive definitions. “Protected health care services” subject to the Shield Law includes both “reproductive health care services” and “gender-affirming treatment” that are lawful in Washington. “Reproductive health care services” and “gender-affirming treatment” are both more broadly defined than elsewhere in existing state law. Both definitions significantly expand the types of services and treatments that are considered reproductive or gender-affirming treatment. The Shield Law protections extend to a significant array of services and treatments.“Reproductive health care services” means “all services, care or products of a medical, surgical, psychiatric, therapeutic, mental health, behavioral health, diagnostic, preventative, rehabilitative, supportive, counseling, referral, prescribing, or dispensing nature relating to the human reproductive system, including, but not limited to, all services, care, and products related to pregnancy, assisted reproduction, contraception, miscarriage management, or the termination of a pregnancy, including self-managed termination.” HB 1469 (Sec 2(4))“Gender-affirming treatment” means “health services or products that support and affirm an individual’s gender identity, including social, psychological, behavioral, and medical or surgical interventions. Gender-affirming care services include, but are not limited to, evaluation and treatments for gender dysphoria, gender-affirming hormone therapy, and gender-affirming surgical procedures.” HB 1469 (Sec 2(2))
   2. Creates limitations on foreign subpoenas and other processes related to protected health care services. The Shield Law prohibits most out-of-state (“foreign”) subpoenas and other legal processes seeking information about the provision or receipt of protected health care services that are lawful in Washington. There are distinctions based on whether the process is civil or criminal.
      Civil process:
      Under existing Washington State Law, an out-of-state party must request the issuance of a foreign subpoena. To request the issuance of a foreign subpoena, they must submit the subpoena to the Washington state court in the county in which discovery is sought to be conducted. The Shield Law prohibits Washington courts from issuing a foreign subpoena if the subpoena is for documents, information, or testimony that relates to protected health care services. A party submitting a foreign subpoena must include an attestation stating whether the subpoena seeking information relating to protected health services. If the subpoena is seeking information relating to protected health services, the court shall quash the subpoena. There are limited exceptions if the action is brought by a person seeking damages or loss of consortium, or seeking the enforcement of a contractual relationship.
      Criminal process:
      Under existing Washington State law, out-of-state criminal processes may be submitted directly to a Washington recipient. Generally, if a court in another state issues a valid criminal process (e.g., a subpoena, warrant, or an order seeking records) to a recipient in Washington, that recipient is required to comply as if it were issued by a court in Washington.The Shield Law prohibits the issuance of a criminal process if it is based on the provision or receipt of protected health care services that are lawful in Washington. If a criminal process is issued, it must include an attestation stating that the process does not relate to criminal liability based on the provision or receipt of protected health care services that are lawful in Washington. If the process does not include an attestation or the attestation indicates that the process is related to the provision or receipt of protected health care services, a person or entity is not required to comply.
      In either process:
      If a party seeking a subpoena submits a false attestation and the subpoena does in fact seek documents, information, or testimony related to protected health services, the party is subject to a $10,000 statutory fine and attesters are subject to the jurisdiction of Washington courts for any suit, penalty, or damages arising out of the false attestation.

1. Creates a new process to modify or quash legal process related to protected health care services. Any person in the state of Washington who receives a subpoena from any court, state or federal, in the United States or any of its territories, may, pursuant to the Washington rules of civil procedure, move to modify or quash the subpoena on the grounds that it is inconsistent with the public policy of Washington if:
   • The information sought concerns the provision or receipt of protected health care services that are lawful in Washington; and
   • Liability in the underlying action is based in whole or in part on a cause of action of criminal liability that is not available under Washington law or the law of another state that is substantially similar to Washington law.

4. Creates a new cause of action for interference with protected health care services. The Shied Law establishes a claim for “interference with protected health care services”. This provides a cause of action for recipients of out-of-state processes to recover damages and other legal costs if a civil or criminal action is objectively baseless and brought for an improper purpose. A claim of interference with protected health care services arises when:

• • A civil or criminal action is commenced against a party in any court in the United States where liability is based in whole or in part on: 1) the provision or receipt of protected health care services that are lawful in Washington; 2) conduct that occurred in Washington; and 3) a cause of action or criminal liability that is not available under Washington law or the law of another state that is substantially similar; or
  • When any person in Washington receives a subpoena from any court in the United States where the information sought concerns the provision or receipt of protected health care services that are lawful in Washington where liability in the underlying action is based in whole or in part on a cause of action or criminal liability that is not available under Washington law or the law of another state that is substantially similar.

A claim does not apply to a judgment entered in another state that is based on an action for which a similar claim would exist under the laws of Washington or where no part of the acts that formed the basis for liability occurred in Washington.

5. Expands address confidentiality program protections. Allows health care providers, employees, or affiliates of providers to apply to the Secretary of State’s Address Confidentiality Program if they are a target for threats or harassment for providing protected health care services.
6. Prohibits public employees from cooperating or disseminating information. The Shield Law prohibits a “state or local agency, commission, board, or department, or any employee thereof, acting in their official capacity”, from cooperating with or providing information to another state or, to the extent permitted by federal law, to a federal law enforcement agency, for the purpose of enforcing another state’s law or an investigation related to another state’s law that asserts criminal or civil liability for the provision or receipt of protected health care services that are lawful in Washington.
   For Public Hospital Districts: The Shield Law does not define “agency,” but this prohibition would likely be interpreted to apply to public hospital districts. “Agency” is typically broadly defined with respect to local government entities elsewhere in existing state law (see RCW 42.56.010(1) – Public Records Act, RCW 42.30.020(1) – OPMA definition of “public agency”; RCW 39.34.020(1) Interlocal Cooperation Act definition of “public agency”). The public policy language within the Shield Law is also intended to apply broadly.
7. Prohibits compelling witness testimony, the issuance of warrants, arrests, and extradition. The Shield Law prohibits compelling a witness in Washington to testify in another state if a prosecution or grand jury investigation in another state is related to the provision or receipt of protected health care services that are lawful in Washington.

It prohibits the issuance of warrants and arrests based on the provision or receipt of protected health care services that are lawful in Washington. It also prohibits the Governor from extraditing any person for out-of-state charges for the provision or receipt of protected health care services that are lawful in Washington.

8. Grants the Attorney General the power to enjoin violations of the Shield Law. It allows the Attorney General to bring an action to enjoin any person from violating any provision of the Shield Law, and the superior court may grant any orders or judgments necessary to enjoin such persons from violating the Shield Law.

Disciplinary Protections for Providers
The Washington State Uniform Disciplinary Act (UDA) allows disciplining authorities to investigate and sanction license holders for committing an act defined as unprofessional conduct under the UDA. Disciplining authorities may also deny applications for licensure if an applicant has had their license suspended, revoked, or restricted in another state or if the applicant has committed an act defined as unprofessional conduct under the UDA.

HB 1340 creates a new chapter under the UDA establishing that the following does not constitute “unprofessional conduct” and may not serve as the basis for professional discipline:

1. Providing, authorizing, recommending, aiding, assisting, referring, or participating in any reproductive health care services or gender affirming treatment, by a license holder, if the participation is consistent with the standard of care in Washington or would have been lawful and consistent with standards of care if it occurred entirely in Washington; or
2. A conviction or disciplinary action based on the license holder’s violation of another state’s laws prohibiting the providing, authorizing, recommending, aiding, assisting, referring, or participating in any reproductive health care services or gender affirming treatment if the participation would have been lawful and consistent with standards of care if it occurred entirely in Washington.

Background
Legislators developed several policy proposals as part of a 2023 legislative package to strengthen access and protection for reproductive services and gender-affirming treatment. The development of this package was in response to the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade.  That decision ended U.S. Constitution-based protections for abortion that had been in place for several decades.  Following Dobbs, states across the country have moved to establish restrictive approaches (criminalizing or imposing civil liability on those who pursue or provide these services and treatments) or protective approaches (expanding access and protecting providers and patients from criminal or civil penalties). During this period of time, many states have taken steps to restrict gender affirming treatment and Washington has responded by further protections for these services.

The Shield Law also further expands the reproductive and gender-affirming protections already provided in Washington state law. Washington state’s Reproductive Privacy Act (RCW 9.02) declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, and includes a statutory protection for abortion as a fundamental right. Washington state also prohibits discrimination in the delivery of a service provided through the Health Care Authority based on a person’s gender identity or expression.

WSHA supports access to health care services and protections for patients and providers in Washington state. WSHA provided important feedback on early drafts of the Shield Law legislation that was broadly drafted and could have potentially impeded the flow of health care information in the normal course of treatment, payment, and operations. WSHA worked with the sponsoring legislators to focus the scope of the law in a way that maintained the intended protections while also ensuring that it did not negatively impact patients and providers in the health care setting.

WSHA’s 2023 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high priority bills that passed in 2023 to help members implement these new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.

References

HB 1469 – Concerning access to reproductive health care services and gender-affirming treatment in Washington state.
HB 1340 – Concerning actions by health professions disciplining authorities against license applicants and license holders.
Title 7 RCW – Sections 1, 2, and 13-17 of HB 1469 will be codified as a new chapter in Title 7.
RCW 9.02 – Reproductive Privacy Act