Difficult to discharge Inslee’s emergency powers

Finally found something more frustrating than the Democratic leadership in the Legislature allowing Gov. Jay Inslee to hold on to unchecked emergency powers. It’s how the governor wields his power when it suits him, but passes the problem back to the Legislature when it doesn’t.

And we do have a problem, one that has been with us since October 2020 when the attorney general’s office reinterpreted the law and advised DSHS they could no longer use the surrogate decision-maker statute for who can make decisions on moving an incapacitated patient from acute care to long-term care.

The result is total hospital capacity reduced by 15-20% across the state during what Gov. Inslee is justifying as an ongoing medical state of emergency.

Let’s break that down. A surrogate decision maker is someone the now incapacitated person trusted enough to list on a medical consent form. The surrogate has the responsibility to decide whether to aggressively attempt resuscitation or to withdraw all but supportive comfort care, colloquially called pulling the plug. That authority covers a range of difficult moral and ethical decisions with no easy answers and often conflicting medical opinions.

According to the AG’s reinterpretation, the same surrogate is not allowed to answer the question, “Should your relative who is currently in an acute care hospital and who according to the consensus of the medical team no longer needs acute care be moved to long-term care?” It’s a question with two options, and only one makes any sense. A basic artificial intelligence algorithm written by a fifth-grader could figure that out.

But somewhere on AG Bob Ferguson’s staff is a lawyer who decided that “no-brainer” of a decision requires going to court to appoint a guardian to have the authority to answer yes.

Zosia Stanley, vice president and general counsel for the Washington Sate Hospital Association, is unaware of any other state using this restrictive interpretation. WSHA would like to see DSHS revisit the interpretation and return to the way it was before so the same folks who can consent for all manner of acute medical care can also consent for long-term care.

According to previous reporting in this paper, the governor has kicked the problem back to the Legislature. Mike Faulk, spokesman for Gov. Inslee’s office, said in an email to a Spokesman-Review reporter, “The governor’s office has been working on a number of these issues for a long time.”

The governor’s office is not doing a good job at it when the problem has been festering more than a year. One would reasonably think taking decisive action to increase hospital capacity by 20% would be a top priority if this is truly an emergency situation.

Meanwhile, hospitals bear the financial impact for every patient stuck in difficult-to-discharge limbo. Medicaid pays a hospital an administrative day rate on the order of about $300 when the actual cost is in a range of $500 to a $1,000/day. “It’s not a cost to the state, but it is a cost to the system,” Stanley said. “If the system works well, patients would be in the right place for the care that they need.” The AG’s ruling only applies to Medicaid recipients, with a disparate impact on the poor and marginalized. Acute care hospitals are not designed to provide the kind of quality of life services which good long-term care focuses on.

And yes, the situation is complicated by having to simultaneously make sure there are adequate long-term care and adult family homes available to receive patients, a situation not helped by an irrational focus from the governor on vaccine mandates which have driven some essential workers out of health care altogether.

Gov. Inslee has not been shy about pushing the boundaries of Washington’s weakly defined emergency powers statute. He’s given no hint at the metrics for declaring the emergency over and no sign of relinquishing authority willingly. I used to wonder how a sensible, civilized, democratic society could come under the control of an autocratic strong man government. It’s getting easier to understand every day – 873 days of emergency and counting.

The next Washington Legislature best be ready to reinstitute the balance of powers in state government and stand up to the strong man.

Contact Sue Lani Madsen at rulingpen@gmail.com.