January 11, 2021
We want to update you on recent discussions we have had with representatives from the Attorney General’s Office (AGO). We continue to seek clarity regarding what charges and increases are allowed under Governor Inslee’s Proclamation 20-19.4.

We will continue to push the Attorney General’s Office for additional clarity. We are not entirely satisfied with the AGO’s position and we believe that its position is not in line with the Governor’s Proclamation. But as of January 8, 2021, the information outlined below will provide you with an overview of what is currently allowed by the AGO.

The Governor’s Proclamation provides in relevant part that:
…the prohibition against increasing, or threatening to increase, the rate of rent for any dwelling does not apply to customary changes in the charges or fees for cost of care (such as charges for personal care, utilities, and other reasonable and customary operating expenses), or reasonable charges or fees related to COVID-19 (such as the costs of PPE and testing), as long as these charges or fees are outlined in the long-term care facility’s notice of services and are applied in accordance with the laws and rules that apply to those facilities, including any advance notice requirement.

Clearly there are two different types of increases contemplated by the Governor’s Proclamation. One is a “COVID-19 Related Fee” that covers the cost of COVID related expenses like PPE and testing. The other encompasses increased care related to operating costs.

The “COVID-19 Related Fee” is the more straightforward of the two. Providers charging this type of fee should make sure that the amount of the fee is reasonable and related to ongoing COVID-19 related expenses. If the COVID-19 Related Fee is in line with your COVID-19 related expenses, you should be okay. Providers should be prepared to justify and explain the amount of the fee if questioned.

Increased charges due to rising care-related operating costs is more difficult to understand and explain. The Attorney General’s Office is taking the position that “rent increases” covering room and board continue to be prohibited by the Proclamation and a provider’s past practice of applying annual increases of three to five percent is not a “customary change” in a charge or fee. Rather, such a blanket across-the-board increase, however small, is still prohibited unless it can be attributed to changes in the cost of care.

The Attorney General’s Office is taking the position that increases that are based on changes in the cost of care, or reasonable costs associated with COVID-19, are allowed. Providers pursuing increased charges attributed to increased care costs should explicitly explain the reason for the increases in their written notice to residents and to the extent possible use the language of the proclamation in their explanation.

A provider should not just say that “rent” has increased due to increased operating costs and leave it at that. Rather, the provider should more explicitly outline the increased costs and explain the need for increased charges. Providers should make sure that cost increases due to changes in care costs or costs associated with COVID-19 can be explained. Providers should avoid disguising a rent increase as care-related costs if the care-related increase cannot be proven.

A better explanation would be that “due to increases in operating expenses, specifically, the increased costs of labor and overhead, it is necessary to increase our care charges by X%”.  A provider making a statement similar to this should be prepared to show that care- related labor and overhead costs have indeed increased and that the increases that the provider is seeking are in line with the increases experienced by the provider. The more specifically a provider can explain what the care related increase are for, while showing that the increases are in line with increased care related costs, the better off the provider will be.

We will continue to fight for a further loosening of the AGO’s interpretation. Until we are successful, you can use the information outlined above as a guide. We will continue to keep you updated on this issue. If you have questions, please email WHCA CEO Robin Dale.
The Washington State Department of Health (DOH) announced that based on Governor Jay Inslee’s Healthy Washington – Roadmap to Recovery plan released last week, all eight regions in Washington will remain in Phase 1 until at least Monday, January 18, 2021.

As outlined in the Governor’s COVID-19 phased recovery plan, regions must meet each of the following four metrics in order to move into Phase 2:
  • Decreasing trend of 10% or more in two-week rate of COVID-19 cases per 100k population;
  • Decreasing trend of 10% or more in two-week rate of new COVID-19 hospitalizations;
  • Less than 90% Intensive Care Unit (ICU) occupancy; and,
  • COVID-19 test positivity of less than 10%.

“When we look at the data from each one of the eight regions, we are seeing some positive trends. This is encouraging, and we are hopeful these trends will continue, and we will see regions begin to move into Phase 2 very soon,” said Deputy Secretary for COVID-19 Response Lacy Fehrenbach.

“We know that all people in Washington want to move forward as quickly as possible with respect to COVID-19. However, these metrics show that we are just not ready to do so now,” said Umair A. Shah, MD, MPH, Washington’s Secretary of Health. “We have made progress but need to continue to work together to reduce the transmission of COVID-19 across our state.”

DOH will reassess all the metrics each week and announce any changes to current phase status every Friday. For more detailed information on where each of the eight regions falls with regards to the four metrics please visit the DOH website. 
The Centers for Disease Control and Prevention (CDC) published three new infographics for the BD Veritor Plus System, Quidel Sofia and Sofia 2, and Abbott BinaxNOW antigen tests for rapid detection of COVID-19. These infographics provide tips for healthcare providers performing point-of-care testing and are designed to supplement, not replace, the package insert or the manufacturer’s instructions for use. 
The Washington State Hospital Association (WSHA) is hosting a behavioral health webinar series, and they invite you to participate in the next webinar, Behavioral Health Impacts of COVID-19 on Patients and Health Care Workers, being held TODAY, January 11, 2021, from 12:00 noon to 1 PM. The COVID-19 pandemic has taken a large psychological toll on our state—and on all of us. Today’s webinar will address the behavioral health impacts of COVID-19 on patients and healthcare workers. Clinical leads on the Washington State Department of Health’s Behavioral Health Strike Team, Dr. Kira Mauseth and Dr. Tona McGuire, will share data, insights, and strategies to support healthcare professionals in this important area.

The webinar will include:
  • Information and data on the behavioral health impacts of COVID-19
  • Building and fostering resilience
  • Resources and training opportunities for support

Please view the WSHA website for more information. Register here.
WHCA continues to post resources and information as it becomes available on our website. If you have questions or need additional information, please call the WHCA office at (800) 562-6170.