More than three years after the COVID-19 pandemic began, many healthcare institutions continue to have difficulty fully staffing all their facilities.  In response, both the Oregon and Washington legislatures enacted new laws that will change how hospitals plan for and staff their facilities.  While both states will send shockwaves throughout their hospitals, the approaches differ

In a previous Health Law Insider blog post, Stoel Rives’ health care team discussed the prohibition on elective procedures promulgated by Oregon and Washington in an effort to conserve the states’ supply of Personal Protective Equipment (“PPE”) and manage provider treatment capacity to ensure adequate resources were available to combat COVID-19. Recently, Oregon and Washington issued guidance permitting providers to gradually restart the provision of elective and non-emergent procedures.[1] As discussed below, Washington also released interpretive guidance to help providers determine how to assess “harm” to the patient that would help determine which procedures are urgent such that they are permitted under the “critical care phase” described in Governor Inslee’s Proclamation 20-24.1.

Additionally, Minnesota recently eased its prohibitions on non-urgent and elective procedures. For information regarding Minnesota’s order, please refer to our earlier client alert.

Oregon

Oregon’s requirements for resumption of elective and non-emergent procedures are onerous and differ based on the provider type. Prior to resuming elective and non-emergent procedures, hospitals and ambulatory surgical centers (“ASC”), must:

  • Ensure that they have adequate bed and workforce capacity to “accommodate an increase in COVID-19 hospitalizations in addition to increased post-procedure hospitalizations.” Specifically, hospital bed (i.e., ICU, step-down, and medical/surgical beds) availability in the region must be maintained at or below 20% and providers must have sufficient capacity to treat all hospitalized patients “without resorting to crises standard of care”;
  • Attest that they are maintaining a 30-day PPE supply on hand (two-week supply and an “open supply chain” is sufficient for “small facilities”);[2]
  • Be able to obtain “sustained PPE supply” without the triggering PPE-conserving measures;
  • Hospitals must provide a daily PPE supplies report to the Oregon Health Authority’s hospital capacity web system;
  • Have adequate access to COVID-19 testing capacity that provides results within two days (four days for smaller facilities) and consider testing patients before performing non-emergent or elective procedures;
  • Have strict infection control and visitation policies in place; and
  • Have sufficient resources for peri-operative care (e.g., pre- and post-operative provider visits; lab, radiology, and pathology services; and other ancillary services).

Continue Reading Non-Urgent and Elective Procedures Update: Oregon and Washington Ease Prohibitions

In an effort to conserve the state’s medical supplies and equipment, specifically personal protective equipment (PPE), Washington and Oregon (among other states) have banned non-urgent, elective procedures.[1] A move that the states hope will help ensure adequate supply of PPE and other medical equipment (e.g., ventilators) to address the COVID-19 pandemic.

Here is a comparative chart summarizing the prohibitions promulgated by Washington and Oregon:
Continue Reading Desperate Times, Desperate Measures: Elective Medical Procedures Banned, PPEs at Risk of Confiscation

Appeals Court ruling supports MA organization request for refund of B&O taxes paid on premiums

On April 1, 2019, the Washington Court of Appeals Division 1 ruled unanimously in a published opinion that premiums received by Medicare Advantage (“MA”) organizations from or on behalf of their members are not subject to Washington’s business and occupation

The Washington Law Against Discrimination (WLAD) prohibits “places of public accommodation” from discriminating against their customers on the basis of several protected characteristics, including, without limitation, sex, race, national origin, and sexual orientation. Sexual harassment is one prohibited form of such sex-based discrimination.  Generally speaking, a place of public accommodation is any business that is open to the public.

On January 31, 2019, the Washington Supreme Court announced a new sexual harassment standard for places of public accommodation. In so ruling, the Court held that, under the WLAD, employers are “directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.” Floeting v. Group Health, Inc., No. 95205-1.
Continue Reading Washington Supreme Court Announces Zero-Tolerance Approach to Sexual Harassment in Places of Public Accommodation

Washington’s Insurance Commissioner Rolls Back Federal Attempt to Expand Access to Short-Term Health Plans

On October 17, 2018, the Office of the Insurance Commissioner (“OIC”) adopted a final rule that defines minimum standards for short-term limited-duration health insurance plans (“short-term plans”) in Washington State and rejects federal efforts to expand their availability. Short-term plans are