| To: | Psychiatric Hospital CEOs, Government Affairs Staff, Behavioral Health Workgroup members |
| Staff Contact: | Cara Helmer, JD, RN, Policy Director, Legal Affairs carah@wsha.org | (206) 577-1827 |
| Subject: | Psychiatric Hospital Fine Matrix Rulemaking Guidance |
Purpose
This bulletin informs psychiatric hospitals that the Department of Health (DOH) final rule on psychiatric hospital fines, implementing HB 2426, went into effect on February 24, 2022. DOH may now use the fine matrix under WAC 246-322-025(6) to fine psychiatric hospitals, licensed under 71.12 RCW as a method of licensing enforcement.
Applicability/Scope
WAC 246-322-025(6) applies to fines assessed against psychiatric hospitals by DOH under RCW 71.12.710. In 2020, the Washington State Legislature enacted a new law in RCW 71.12.710 through HB 2426, which expanded DOH’s enforcement and oversight abilities over psychiatric hospitals, including the addition of fining powers for noncompliance with statutes and regulations.
Recommendations
- Review this bulletin and share it with the appropriate staff.
- Review the new rules under WAC 246-322-025(6) and become familiar with the fine matrix.
- Re-read WSHA’s bulletin on HB 2426 to understand DOH’s new enforcement and oversight tools.
Overview of Fine Matrix Rules
WAC 246-322-025(6) describes circumstances under which a psychiatric hospital may be fined by DOH and creates parameters around the fine amounts based on (1) the scope of the violation and (2) the severity of the violation. Hospitals may appeal fines under RCW 43.70.095.
WSHA and a workgroup of members were active in the DOH rulemaking on this fine matrix. WSHA provided regulatory language and recommendations to DOH during both the CR 101 and CR 102 phases of the rulemaking process, as well as testifying at the CR 102 hearing. WSHA was able to substantially lower the fine levels on the fine matrix as well as clarify and tailor the language defining when fines are appropriate. We are pleased that DOH accepted many of our recommendations and edits and appreciate all the feedback from our workgroup members.
Circumstances under which a hospital may be fined
There are three circumstances under which the DOH may issue a fine under this rule:
- The psychiatric hospital has previously been subject to an enforcement action for the same or similar type of violation of the same statute or rule.
- The psychiatric hospital has previously been given a statement of deficiency including the same or similar type of violation for the same or similar statute or rule.
- The psychiatric hospital failed to correct noncompliance with a statute or rule by a deadline established by DOH.
If the hospital meets one of these conditions, DOH may assess a fine.
Determination of fine amounts
The fine assessed is determined according to the table in WAC 246-322-025(6)(b). This table provides a summary of the fine amounts which may be assessed by DOH depending on the circumstance. The lowest fines, of up to $1,000, are for those with a “limited” scope and a “low” severity. The highest fine amounts, ranging from $6,500-$10,000 per violation, are for those violations with a “widespread” scope and a “high” severity.
Severity of the Violation
When assessing a fine, the DOH may determine that a violation is “low,” “moderate,” or “high” severity. The more severe the violation is assessed to be, the higher the fine will be according to the matrix in WAC 246-322-025(6)(b). WAC 246-322-025(6)(c)-(d) provide further details on how DOH will evaluate and determine the severity level of a violation.
- A violation that is considered low impact is one in which harm could happen but would be rare. This violation is unlikely to directly contribute to the harm of a patient.
- A moderate violation is when harm could happen occasionally and could cause harm directly. Harm would likely only happen in certain situations or with particular patients.
- A high violation indicates that harm could happen at any time or already did happen. This violation is likely to lead directly to patient harm at any time.
Additional factors the department will consider when determining the severity of the violation include the impact of the potential or actual harm to the patient, whether a fine had already been levied related to the same deficiency, and if the hospital has requested or been offered technical assistance from DOH and if that technical assistance has been implemented.
Scope of the violation
The scope of a violation may be “limited,” “pattern,” or “widespread.” Similar to severity, the broader the scope, the higher the fine will be under the fine matrix in WAC 246-322-025(6)(b). WAC 246-322-025(6)(e)-(f) provide further details on how DOH will determine the scope of a violation.
- A limited violation is a unique occurrence that is not representative of regular practice. It’s an outlier that could impact one or a limited number of people (patients, visitors, or staff) or locations.
- A pattern violation is multiple occurrences of the deficient practice or a single occurrence that could impact more than a limited number of persons (patients, visitors, or staff).
- A widespread violation is pervasive or a systemic failure and could impact most or all patients, visitors, or staff. Widespread scope refers to the entire organization, not just a subset of patients or one unit.
The department will also consider time that has passed between similar violations when determining the scope of a violation.
WSHA’s 2021 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 2021 to help members implement the 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
- Chapter 246-322-025 WAC –effective as of February 24, 2022
- WSHA’s bulletin on HB 2426
- WSHA’s bulletin on SHB 1148
